Filed 3/16/16 P. v. Morales CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                       (Amador)
                                                            ----




THE PEOPLE,                                                                                  C079657

                   Plaintiff and Respondent,                                             (Super. Ct. No.
                                                                                         14CR2267002)
         v.

BENITO MORALES,

                   Defendant and Appellant.




         Appointed counsel for defendant Benito Morales has asked this court to review the
record to determine whether there exist any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a
disposition more favorable to defendant, we will affirm the judgment.

                                                             I

         We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

                                                             1
        Between May and August of 2014, defendant was a prisoner at Mule Creek State
Prison. He and his daughter, an approved visitor, engaged in a series of coded telephone
conversations discussing the purchase, transportation, and smuggling of heroin into the
prison by his daughter. Pursuant to a search warrant, defendant’s daughter was searched
and found in possession of 11.5 grams of heroin. She admitted knowing what she was
carrying and that she intended to pass the heroin to defendant during their visit.
        A complaint charged defendant with felony possession of contraband in jail (Pen.
Code, § 4573.6(a))1 and further alleged defendant had a prior strike conviction.
(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). In exchange for a negotiated sentence of
two years, doubled pursuant to the strike, defendant pleaded no contest to possession of
heroin in jail and admitted the prior strike. The trial court sentenced defendant to a four-
year term in accordance with the plea, and imposed a $300 restitution fine (§ 1202.4),
$300 suspended parole revocation restitution fine (§ 1202.45), a $40 court security fee
(§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373).
        The trial court denied defendant’s request for a certificate of probable cause.

                                              II

        Counsel filed an opening brief that sets forth the facts of the case and requests that
we review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. Defendant
filed a supplemental brief, claiming: (1) he received ineffective assistance of counsel, in
that trial counsel did not challenge the search warrant issued against his daughter; and (2)
appellate counsel was ineffective for failing to file a potentially meritorious claim.




1   Undesignated statutory references are to the Penal Code.

                                               2
       To prevail on a claim of ineffective assistance of counsel, the defendant must
show that counsel’s performance fell below a standard of reasonable competence, and
that there is a reasonable probability the result would have been more favorable to the
defense in the absence of counsel’s deficient performance. (Strickland v. Washington
(1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674].) The defendant bears the burden of
proving ineffective assistance of counsel by a preponderance of the evidence. (People v.
Harris (1993) 19 Cal.App.4th 709, 714.) Defendant has not asserted, let alone
established, that he had standing to challenge the search of his daughter, or the warrant
that supported that search. “The question of whether a defendant has standing to
challenge a search is a question of ‘whether the challenged search and seizure violated
the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence
obtained during it.’ [Citation.] In other words, in order to challenge a search or seizure,
the defendant must first establish the search or seizure ‘infringed an interest of the
defendant which the Fourth Amendment was designed to protect.’ [Citation.]” (In re
Rudy F. (2004) 117 Cal.App.4th 1124, 1131.) “ ‘ “Fourth Amendment rights are
personal rights which, like some other constitutional rights, may not be vicariously
asserted.” ’ (Rakas v. Illinois [(1978)] 439 U.S. [128, ]133-134 [58 L.Ed.2d 387],
quoting Alderman v. United States (1969) 394 U.S. 165, 174 [22 L.Ed.2d 176].)”
(People v. Schmitz (2012) 55 Cal.4th 909, 932.) Accordingly, defendant has not
established trial counsel was ineffective in failing to make a motion to suppress the
search of his daughter.
       A claim of ineffective assistance of appellate counsel also requires a showing of
both deficient performance and prejudice. (In re Reno (2012) 55 Cal.4th 428, 488.)
Appellate counsel has the duty to prepare a legal brief containing citations to the
appellate record and appropriate authority. Counsel must set forth all arguable issues and
cannot argue the case against his or her client. Failure of “appellate counsel to raise
crucial assignments of error, which arguably might have resulted in a reversal” deprives

                                              3
an appellant of effective assistance of appellate counsel. (In re Smith (1970) 3 Cal.3d
192, 202-203.) However, the fact that appellate counsel followed the procedure set forth
in Wende is insufficient, by itself, to show appellate counsel has been ineffective.
       We have undertaken an examination of the entire record pursuant to Wende, and
we find no arguable error that would result in a disposition more favorable to defendant.
Accordingly, defendant has also failed to meet his burden of proof on the issue of
ineffective assistance of appellate counsel. Appellate counsel’s filing of a Wende brief
was not unprofessional.

                                       DISPOSITION

       The judgment is affirmed.



                                                        HULL                  , J.



We concur:



      BLEASE                , Acting P. J.



      MURRAY                , J.




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