People v. Anderson CA4/2

Filed 10/28/20 P. v. Anderson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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, E075097
v. (Super.Ct.No. FSB802131)
ABDULLAH KARIM ANDERSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Harold T.
Wilson, Jr., Judge. Affirmed.
A.K. Anderson, in pro. per., and Aaron J. Schechter, under appointment by the
Court of Appeal, for Defendant and Appellant.
Defendant and appellant, Abdullah Karim Anderson, filed a motion to vacate his
conviction pursuant to Penal Code section 1473.7, which the trial court denied. After
defendant filed a notice of appeal, this court appointed counsel to represent him.
1
Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738, setting forth a
statement of the facts, a statement of the case, and identifying two potentially arguable
issues: whether the trial court erred in denying defendant’s motion and whether
defendant’s conviction should be vacated due to the unavailability of the reporter’s
transcript from the guilty plea and sentencing hearings. Defendant was offered the
opportunity to file a personal supplemental brief, which he has done. Defendant contends
his public defender rendered ineffective assistance of counsel in failing to investigate
whether drugs were actually found on defendant’s person when officers arrested him.
We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 22, 2008, the People charged defendant by felony complaint with
possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a), count 1)
and misdemeanor resisting an officer (Pen. Code, § 148, subd. (a)(1), count 2). On
June 2, 2008, defendant pled guilty to the count 1 offense. According to the written,
factual basis for the plea signed by defendant, on or about May 20, 2008, defendant
possessed 0.3 grams of cocaine in his pocket for personal use. In return for his plea, the
trial court dismissed the count 2 charge and granted defendant three years’ felony
probation, a term of which required that he serve 60 days in jail.1
1 The superior court clerk provided this court with an affidavit reflecting that she
was unable to produce reporter’s transcripts from defendant’s guilty plea and sentencing
hearings. This was because the hearing dates had occurred more than 10 years earlier, and
the notes were destroyed pursuant to Government Code section 69955, subdivision (e).
2
On December 11, 2008, a bench warrant issued because defendant had failed to
appear for his weekend jail time since October 24, 2008. On August 14, 2009, defendant
admitted he had violated the terms of his probation. The trial court reinstated defendant’s
probation with an additional term that he serve 278 days in jail with credit for time
served. On October 7, 2011, the court granted defendant’s motion for termination of his
probation. On September 21, 2018, the court granted defendant’s motion pursuant to
Penal Code section 1170.95 to reduce his felony conviction to a misdemeanor.
On June 21, 2019, defendant filed a motion to vacate his conviction pursuant to
Penal Code section 1473.7 based on the newly discovered grounds that his public
defendant never investigated whether there were any drugs on his person when he was
arrested. At the hearing on his motion on March 11, 2020, the People noted that
defendant had “not presented any newly discovered evidence . . . . There’s nothing new
in this case.” The trial court inquired of defendant what specific, new evidence had he
discovered to warrant granting his motion. Defendant responded that his name had been
misspelled, stated that he was not in possession of any drugs, and said his case had not
been investigated properly. The court denied the motion because defendant had failed to
provide any newly discovered evidence.
II. DISCUSSION
Defendant contends his public defender rendered ineffective assistance of counsel
by failing to investigate whether drugs were actually found on his person. We hold that
defendant failed to state a cognizable claim for relief under Penal Code section 1473.7 by
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failing to provide any newly discovered evidence; thus, the court properly denied his
motion.
Penal Code section “1473.7, subdivision (a)(2) provides in pertinent part that ‘[a]
person who is no longer in criminal custody may file a motion to vacate a conviction’ on
the basis that ‘[n]ewly discovered evidence of actual innocence exists that requires
vacation of the conviction or sentence as a matter of law or in the interests of justice.’ A
motion based on newly discovered evidence must be filed ‘without undue delay from the
date the moving party discovered, or could have discovered with the exercise of due
diligence, the evidence that provides a basis for relief under this section.’ [Citation.]
Section 1473.7, subdivision (e)(1) provides in part that ‘[t]he court shall grant the motion
to vacate the conviction . . . if the moving party establishes, by a preponderance of the
evidence, the existence of any of the grounds for relief specified in subdivision (a).’
Thus, the defendant has the burden to demonstrate entitlement to relief under section
1473.7.” (People v. Perez (2020) 47 Cal.App.5th 994, 997.) “[N]ewly discovered
evidence [consists of] testimony, writings and similar things described in Evidence Code
section 140 (which defines “evidence”), discovered after trial or judgment, and that with
reasonable diligence could not have been discovered earlier.” (Id. at p. 999.) We review
a trial court’s denial of defendant’s motion to vacate his conviction under of Penal Code
section 1473.7 for abuse of discretion. (Id. at p. 997.)
Here, as in People v. Perez, supra, 47 Cal.App.5th at page 998, “defendant failed
to state what new evidence was discovered.” Defendant’s assertion that he had no drugs
on him when he was arrested is not evidence discovered after judgment; rather, that
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information should have been apparent to him when he was arrested. Defendant contends
that his defense counsel rendered ineffective assistance of counsel by failing to
investigate whether defendant had drugs on his person when arrested. Again, this is not
newly discovered evidence. As in Perez, defendant’s “newly discovered evidence”
consists of facts which “were known to exist prior to his conviction[].” (Id. at p. 999.)
Thus, the trial court properly denied defendant’s motion.
III. DISPOSITION
The trial court’s denial of defendant’s motion to vacate his conviction under Penal
Code section 1473.7 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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