People v. Hempe CA4/2 ( 2013 )

Filed 3/1/13 P. v. Hempe CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054888
v. (Super.Ct.No. FWV1002625)
JONATHAN RICARDO HEMPE, ORDER MODIFYING OPINION
AND DENYING PETITION FOR
Defendant and Appellant. REHEARING
[NO CHANGE IN JUDGMENT]
The petition for rehearing is denied. The opinion filed in this matter on February
4, 2013, is hereby modified, as follows:
On page 4, delete the first paragraph, and replace it with the following:
We offered defendant an opportunity to file a personal
supplemental brief, and granted numerous extensions at his
request, but he did not do so until after this opinion was
initially filed on February 4, 2013. On February 14, 2013,
defendant filed a 15-page letter, with exhibits, raising a
number of issues, which he divides into three main categories.
Defendant first argues his two attorneys provided
ineffective assistance of counsel when they allowed him to
plead guilty and failed to: file an appeal on his behalf;
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investigate; present evidence or witness testimony; present
certain jury instructions on the defenses of ignorance, mistake
of facts or necessity; and file a Pitchess motion. Here,
defendant did receive the assistance of appointed appellate
counsel, and so any deficiencies by his trial attorneys in
failing to file an appeal did not prejudice him. A cognizable
claim of ineffective assistance of counsel following a guilty
plea requires a showing that the defendant would not have
pled guilty and insisted on going to trial but for counsel’s
incompetent advice. (In re Resendiz (2001) 25 Cal.4th 230,
253.) Such a claim must be corroborated by independent,
objective evidence. (Ibid.) Pertinent factors to be considered
include the advice actually given by counsel, whether counsel
accurately and effectively communicated the terms of the
offer to the defendant, and the difference between the offer
and the probable consequences of proceeding to trial, as
viewed at the time the offer was made. (Ibid.) Defendant
does not make this showing with regard to his claims on the
presentation of evidence and witnesses, as well as jury
instructions. Defendant does not state with any specificity
what information his attorneys would have uncovered had
they investigated to his satisfaction. Finally, defendant does
not explain, much less establish, how filing a Pitchess motion
would have resulted in a better outcome for him.
Next, defendant argues he was denied equal protection
and due process because: his attorneys were not able to sever
his case from that of his codefendant “as well as any other
motions which would have led to a different outcome;” and
his attorneys “unjustly conspired with the District Attorney”
to deny him discovery, ignored $2,800 in marked currency
found on his person and unjustly increased the amount of
victim restitution. Regarding the severance motion, we
cannot find any mention in this record that the defense filed or
orally made such a motion. To the extent this is a claim of
ineffective assistance of counsel for failing to make a
severance motion, defendant fails to establish both ineffective
assistance and prejudice therefrom. Regarding the “any other
motions” claim, we are unable to determine to what he is
referring. Regarding the claims his attorneys conspired with
the District Attorney, such claims based on matters outside
the record on direct appeal are more appropriately raised in a
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habeas corpus proceeding. (People v. Mendoza Tello (1997)
15 Cal.4th 264, 266-267.) We must therefore reject these
claims.
Defendant’s third main contention is unintelligible. He
refers in several places to an inmate labor program and joint
ventures. In addition, he attaches as an exhibit several pages
of a document published by the Department of Corrections
and Rehabilitation about a Joint Venture Program that
provides employment for inmates, but we are unable to
determine what appealable issue he intends to raise. Because
defendant fails to present this argument in a cogent manner,
we need not consider the issue. (People v. Bonin (1989) 47
Cal.3d 808, 857, fn. 6.)
Pursuant to the mandate of People v. Kelly (2006) 40
Cal.4th 106, we have independently reviewed the record for
potential error and find no arguable issues.
Except for this modification, the opinion remains unchanged. This modification
does not change the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
RICHLI
J.
MILLER
J.
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Filed 2/4/13 P. v. Hempe CA4/2 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054888
v. (Super.Ct.No. FWV1002625)
JONATHAN RICARDO HEMPE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,
Judge. Affirmed.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Jonathan Ricardo Hempe is serving 33 years in prison
after pleading guilty to robbery, extortion and burglary, and admitting a gun use
enhancement. As discussed below, we affirm the judgment.
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FACTS AND PROCEDURE
On October 20, 2010, defendant and his codefendant were at the codefendant’s
home with two friends/victims talking and drinking. When the four men went for a drive,
defendant and one of the victims, Paredes, got into an argument over money Paredes
owed to defendant. At some point defendant had Paredes place a call to his father telling
him he needed some money to pay off a debt. Defendant took the phone from Paredes
and told the father that he had Paredes in the trunk of his car and that something bad
would happen if he did not pay $1500. Defendant sent a text to his codefendant saying he
was going to “smoke” both of the victims. Defendant was armed with a 9-millimeter
handgun and his codefendant had a .357 revolver. The car pulled over to a desolate area
and defendant told the two victims to “just get out of here.” He also took their wallets
and cell phones. As the victims walked away, defendant fired at them four times, striking
Paredes once in the back. Defendant and his codefendant then drove to Paredes’
residence and demanded money from the family while brandishing their handguns. The
family handed over $600.
On October 22, 2010, the People filed a complaint charging defendant with two
counts of attempted first degree murder (Pen. Code, §§ 664/187(a)),1 two counts of
second degree robbery (§ 211), two counts of assault with a firearm (§ 245, subd. (b)),
extortion (§ 520), residential burglary (§ 459), possession of a short-barreled shotgun or
rifle (§ 12020, subd. (a)), two counts of possession of a firearm by a felon (§ 12021, subd.
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(a)(1)), and possession for sale of a controlled substance (§ Health & Saf. Code, § 11378).
The People also alleged that defendant had a prior strike (§§ 1170.12 & 667, subds. (b)-
(i)) and serious felony convictions (§ 667, subd. (a)(1)), and that he personally used a
firearm and caused great bodily injury (§ 12022.53).
On April 26, 2011, defendant pled guilty to second degree robbery with personal
use of a firearm (without the great bodily injury allegation), one count of extortion, and
one count of residential burglary. Defendant also admitted to having one prior strike and
one serious felony conviction.
On June 8, 2011, the trial court sentenced defendant to the agreed term of 33 years
in prison, as follows: three years for the robbery, doubled to six years for the prior strike,
20 years for the firearm enhancement, two years for the robbery, a stayed term of two
years and eight months for the burglary, and five years for the prior serious felony.
At the victim restitution hearing held on August 18, 2011, the trial court ordered
defendant to pay $40,000 to Paredes for uninsured medical bills and $7,560 to the other
victim. Defendant’s liability is joint and several with that of his codefendant. Defense
counsel agreed to these amounts. This appeal followed.
DISCUSSION
Upon defendant’s request, this court appointed counsel to represent him. Counsel
has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders
[footnote continued from previous page]
1 All further statutory references are to the Penal Code unless otherwise indicated.
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v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a
statement of the case, a summary of the facts, and potential arguable issues and requesting
this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and
granted numerous extensions at his request, but he has not done so. Pursuant to the
mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the
record for potential error and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
MILLER
J.
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