People v. Sanchez CA2/8

Filed 5/5/21 P. v. Sanchez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B307937
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA444044-01)
v.
JESSE ARMANDO SANCHEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
We review this appeal pursuant to People v. Wende (1979)
25 Cal.3d 436.
On October 12, 2016, appellant was charged, with three co-
defendants, in a three-count information with murder in violation
of Penal Code section 187, subdivision (a); shooting at an
occupied vehicle in violation of Penal Code section 246; and
possessing a firearm as a felon in violation of Penal Code section
29800, subdivision (a)(1). The People also alleged all three
charges were committed in association with, or for the benefit of,
a street gang in violation of Penal Code section 186.22,
subdivision (b)(1)(C) and appellant personally discharged a
firearm causing injury and death within the meaning of Penal
Code section 12022.53, subdivisions (b),(c) and (d).
The facts giving rise to the charges occurred on February 2,
2016, at around 2:00 a.m., when appellant, in a car with three
others, shot and killed the victim who was in another car. The
defendants were apprehended when they stopped their car after a
lengthy high speed chase.1
On November 12, 2019, appellant pled no contest to second
degree murder and admitted the firearm allegation as alleged
under Penal Code section 12022.53, subdivision (d) and the gang
allegation (with the understanding that the gang allegation
would be stricken at sentencing).
On August 13, 2020, the trial court sentenced appellant to
15 years to life imprisonment on the second degree murder
conviction and 25 years to life on the Penal Code section
12022.53, subdivision (d) allegation, to run consecutively, for a
total of 40 years to life. The gang allegation was stricken. The
court ordered a copy of appellant’s Franklin packet to be
1 These facts are taken from appellant’s probation report.
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forwarded to the Department of Corrections and Rehabilitation.
The remaining counts were dismissed pursuant to the plea
agreement.
Appellant filed a timely notice of appeal.
On February 5, 2021, we appointed counsel to represent
Sanchez on appeal. After examining the record, counsel filed an
opening brief raising no issues and asking this court to review
the record independently as required by People v. Wende.
Counsel also declared under penalty of perjury that he had
written to appellant to explain his evaluation of the record and
his intention to file a Wende brief. He informed appellant of his
right to file a supplemental brief and sent him copies of the
transcripts of the record on appeal and the brief.
On March 2, 2021, we advised appellant he had 30 days
within which to personally submit any contentions or issues he
wished us to consider. On April 1, 2021, appellant filed a
supplemental brief. In his brief appellant states he desires to
withdraw his plea due to his counsel’s ineffective assistance. He
asserted he was told by counsel that as a youthful offender, he
would only serve 15 years to life before he was eligible for a
parole hearing. Now he understands that he must serve 25 years
to life before he is eligible for parole.
Appellant also states his attorney told him there was no
way a jury would convict him of the lesser offense of
manslaughter or find credible an assertion of self-defense to the
murder charge. He believes his counsel was ineffective in giving
that opinion and wants to withdraw the plea because, based on
his admissions to the court, he believes he has a chance to
persuade a jury to convict him of a lesser offense. He attributes
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his decision to plead no contest to his counsel’s ineffective
assistance.
We have examined the entire record and are satisfied
Sanchez’s counsel has fully complied with his responsibilities and
that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th
106, 109–110; People v. Wende, supra, 25 Cal.3d at p. 441.)
As noted, appellant argues he was induced to enter the plea
because his attorney misadvised him as to timing of his eligibility
for parole and the odds of a jury finding him guilty of a lesser
offense or acquitting him altogether.
Appellant has the burden of proving ineffective assistance
of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) To
establish such a claim, defendant must show that his counsel’s
performance fell below an objective standard of reasonableness,
and that but for counsel’s error, a different result would have
been reasonably probable. (Strickland v. Washington (1984) 466
U.S. 668, 687–692; People v. Mickel (2016) 2 Cal.5th 181, 198.)
Certain practical constraints make it more difficult to address
ineffective assistance claims on direct appeal rather than in the
context of a habeas corpus proceedings. The record on appeal
may not explain why counsel chose to act as they are alleged to
have acted. Under those circumstances, a reviewing court has no
basis on which to determine whether counsel has a legitimate
reason for making a particular decision, or whether counsel’s
actions or failure to take certain actions were objectively
unreasonable. (Mickel, at p. 198.)
Moreover, we begin with the presumption that counsel’s
actions fall within the broad range of reasonableness, and afford
“great deference to counsel’s tactical decisions.” (People v. Lewis
(2001) 25 Cal.4th 610, 674.) A reviewing court will reverse a
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conviction on direct appeal based on ineffective assistance of
counsel only if there is affirmative evidence that counsel had
“ ‘ “ ‘no rational tactical purpose’ ” ’ ” for an action or omission.
(People v. Mickel, supra, 2 Cal.5th at p. 198.)
Based on this record, we have no way to resolve on direct
appeal the issue of counsel’s effectiveness. A judgment of
conviction may not be set aside on speculation. Where the record
on appeal does not reveal counsel’s reasons for acting or failing to
act in the manner complained of, or whether counsel, indeed,
acted or failed to act as alleged, the claim of incompetence of
counsel must be rejected. Here, appellant’s claim of ineffective
assistance is more appropriately made in a petition for habeas
corpus. (People v. Pope, supra, 23 Cal.3d at p. 428.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P.J.
GRIMES, J.
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