People v. Fitz CA6 ( 2013 )

Filed 12/10/13 P. v. Fitz CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039535
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC753856)
v.
RICARDO PADILLA FITZ,
Defendant and Appellant.
On December 10, 2007, defendant Ricardo Padilla Fitz pleaded no contest to one
count of carjacking, 11 counts of robbery and one count each of false imprisonment,
carrying a loaded firearm, second degree burglary (Pen. Code, §§ 215, 211, 236, 237,
former § 12031, subd. (a) [now § 25850], § 459, 460, subd. (b)), being under the
influence of and possession for methamphetamine (Health & Saf. Code, §§ 11550, subd.
(e), 11370.1) while armed with a firearm and possession of a short barreled shotgun
(former Pen. Code, § 12020, subd. (a)(1) [now § 33215]). As to a number of these
counts, he admitted gang enhancements, personal use of a handgun or that a principal
personally used a firearm and/or personal use of a deadly or dangerous weapon. (Id., §§
186.22, subd. (b), 12022.53, subd. (b), 12022.53, subds. (b), (e)(1), 12022, subd. (b)(1).)
Defendant was not charged with strike priors. On February 29, 2008, the trial court
sentenced defendant to a determinate term of 32 years, four months in state prison. No
appeal was ever perfected or prosecuted from the original judgment.
On March 13, 2013, defendant filed a petition in propria persona for recall of
sentence under Proposition 36’s the Three Strikes Law Reform Act (the Act) of 2012 and
Penal Code section 1170.126. On April 4, 2013, the trial court denied relief, finding
defendant ineligible for resentencing under the provisions of the Act because he had not
been sentenced to a life term under the Three Strikes Law. On April 16, 2013, defendant
filed a timely notice of appeal.
On appeal, we appointed counsel to represent defendant in this court. Appointed
counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496(Serrano). Pursuant to Serrano, on July 15, 2013, we notified defendant of his right to
submit written argument in his own behalf within 30 days. On July 17, 2013, we
received a letter from defendant. Also, while the appeal was pending, defendant filed a
motion to replace counsel on appeal. In both his letter and motion, defendant contends
that his appointed attorney on appeal is ineffective for failing to raise any issues on
appeal, and he objects to having to file a supplemental brief on his own behalf. However,
we cannot find that appellate counsel was ineffective for failing to raise an arguable issue
on appeal. Appellate counsel sufficiently complied with his duties, as enumerated in
Serrano, by filing a brief that sets out the applicable facts and the law and informs the
court that he has found no arguable issues on appeal. (Id., at p. 503.) Therefore, the
motion to replace counsel has no merit and must be denied.
Defendant further contends that there are arguable appellate issues relating to due
process violations at the trial court, ineffective assistance of trial counsel and Sixth
Amendment violations during the trial court proceedings underlying his original
conviction. Even if defendant had described any of these issues with sufficient
specificity, defendant’s contentions relate to the original judgment of conviction, and not
to the postjudgment order on appeal here. Having failed to raise these issues in an appeal
from the judgment of conviction, defendant cannot properly raise them now as they are
not timely raised in this appeal filed over five years after entry of judgment. Since
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defendant has failed to identify any arguable issues relevant to the instant appeal, we
decline to retain it.
The defendant having failed to raise any arguable issue, we dismiss the appeal.
(Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
DISPOSITION
The motion to replace appellate counsel is denied. The appeal is dismissed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
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