People v. Anderson CA4/2

Opinion

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

3 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

4 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.