Filed 2/24/14 P. v. Clody CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048884

         v.                                                            (Super. Ct. No. 13CF0408)

JEFFREY JOSEPH CLODY,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Affirmed.
                   Rex Adam Williams, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.


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              Jeffrey Joseph Clody pleaded guilty to possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a)), and admitted various prior conviction sentence
enhancement allegations, all in a plea to the court while represented by appointed
counsel. The trial court then exercised its discretion and struck a prior “serious felony”
conviction (Pen. Code, §§ 667, subd. (a)(1) and 1192.7, subd. (c)(1)) for sentencing
purposes only.
              As agreed in the guilty plea form, the trial court sentenced Clody to a total
prison term of five years, but then suspended execution of that sentence and granted
Clody probation on certain terms and conditions, including 348 days in the county jail
with credit for time served, and a requirement that he complete the Delancey Street
residential drug treatment program.
              About a week later while acting in propria persona, Clody filed a notice of
appeal and a motion to withdraw his guilty plea on ineffective assistance of counsel
grounds. Clody next requested and obtained a certificate of probable cause (Pen. Code,
§ 1237.5) from the trial court. However, the trial court declined to hear Clody’s motion
to withdraw his guilty plea on the grounds that the notice of appeal had deprived the trial
court of jurisdiction over the matter.1




       1 The selected minutes included in the clerk’s transcript do not reflect this ruling.
However, on our own motion we take judicial notice (Evid. Code, §§ 452, subd. (d), 459)
of the September 18, 2013 minutes which state: “Having received a motion or request
from Defendant to withdraw his plea under Penal Code section 1018, the court finds and
orders as follows: Defendant has appealed the judgment, and the appeal is still pending
(G048884). As a general rule, the filing of an appeal removes jurisdiction from the trial
court and vests it in the appellate court. [Citation.] There are exceptions to this rule,
such as a lack of subject matter jurisdiction, for correction of clerical errors, correction of
an unauthorized sentence, or for recall and resentencing. [Citation.] Defendant does not
deomonstarte [sic] that any of the exectopns [sic] apply in this case. Rather, he argues he
received ineffective assistance of counsel (IAC). Insofar as Defendant believes he
received IAC, his remedy is a petition for writ of habeas corpus. [Citation].”

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              After Clody appealed we appointed counsel to represent him. Counsel filed
a brief which set forth a statement of the case and the facts. He did not argue against
Clody, but advised he had not found any issues to argue on Clody’s behalf. (People v.
Wende (1979) 25 Cal.3d 436.) To assist us in our independent review of the record, he
suggested we consider whether Clody was denied effective assistance of counsel, and
directed our attention to the motion to withdraw plea previously filed by Clody. Clody
also filed a supplemental brief which raises ineffective assistance of counsel.
              We have examined the entire record to determine if any arguable issues are
present and we have found none. (People v. Wende, supra, 25 Cal.3d at pp. 441-442;
People v. Johnson (1981) 123 Cal.App.3d 106, 111-112.)
                                          FACTS
              Paragraph 29 of the guilty plea form signed by Clody under penalty of
perjury states the following: “In Orange County, California on 2/6/13, I did knowingly &
unlawfully possess a usable quantity of methamphetamine, a controlled substance.”
                                      DISCUSSION
              Clody contends his trial counsel was ineffective on many occasions before
and at the time of his guilty plea, and most of these contentions concern matters which
are outside the record. While ineffective assistance of counsel issues may be reviewed on
appeal with a certificate of probable cause (In re Brown (1973) 9 Cal.3d 679, 682-683,
overruled on another ground in People v. Mendez (1999) 19 Cal.4th 1084), in cases such
as this where matters outside the record must be considered in evaluating those claims, a
habeas corpus petition should be filed with an appeal. (In re Clark (1993) 5 Cal.4th 750,
785, fn. 22.) Clody did not file a habeas corpus petition with this appeal.
              Furthermore, although we undoubtedly have discretion to construe Clody’s
supplemental brief itself as a petition for habeas corpus, we decline to do so because (a)
again many of Clody’s ineffective assistance counsel claims concern matters outside the
record, (b) further evidentiary proceedings will likely be required, (c) Clody has not first

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applied for habeas relief in the superior court, and (d) Clody has not explained why he
has not done so. (In re Ramirez (2001) 89 Cal.App.4th 1312; In re Hillery (1962) 202
Cal.App.2d 293.) In this respect our decision is without prejudice to any subsequent
petition for habeas corpus which may be filed in the superior court.
                                     DISPOSITION
              The judgment is affirmed.




                                                 THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.




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