Filed 4/22/14 P. v. Rodriguez CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B250455

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA089644)
         v.

BRANDON DANIEL RODRIGUEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Jared
Moses, Judge. Affirmed.
                                                         ______
         Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
         No appearance for Plaintiff and Respondent.
                                                         ______
       An amended felony complaint, filed and further amended by interlineation on
June 4, 2013, charged Brandon Daniel Rodriguez with (1) attempted murder (Pen. Code,
§§ 664, 187, subd. (a)) (count 1)1; (2) child abuse (§ 273a, subd. (a)) (count 2); and
(3) infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)) (count 3). The
amended felony complaint specially alleged, as to counts 1 and 3, that Rodriguez
had a prior serious conviction for robbery (§ 211) that subjected him to a five-year
enhancement under section 667, subdivision (a)(1), and, as to counts 1, 2 and 3, that the
robbery conviction was a serious or violent felony constituting a strike under the “Three
Strikes” law (§§ 667.5, subds. (b)-(d); 1170.12, subds. (a)-(d)). As to counts 1 and 3,
it also alleged a great-bodily-injury enhancement under section 12022.7, subdivision (e).
Also on June 4, part way through the preliminary hearing, which the trial court ultimately
considered a probation violation hearing with respect to Rodriguez’s prior robbery
conviction, Rodriguez pleaded no contest to the infliction of corporal injury on a
cohabitant as charged in count 3 and admitted that he had a prior robbery conviction,
which he agreed qualified as a strike and as a serious felony for purposes of enhancement
under section 667, subdivision (a)(1). Based on the negotiated plea agreement, the court
sentenced Rodriguez to a state prison term of nine years, consisting of the low term of
two years for the infliction of corporal injury on a cohabitant, doubled pursuant to the
Three Strikes law, plus five years for the section 667, subdivision (a)(1), enhancement.
The court dismissed counts 1 and 2 and struck the great-bodily-injury enhancement.
It revoked probation on the robbery case, sentenced Rodriguez to the low term of two
years in state prison and ordered that term to run concurrently with the nine-year term.
A felony abstract of judgment was filed on June 10.
       On July 3, Rodriguez wrote a letter to the trial court requesting to appear and
withdraw his plea. Noting that Rodriguez already had been sentenced and judgment had
been entered in his case, the court indicated that the vehicle for Rodriguez to move to
withdraw his plea would be a petition for writ of habeas corpus. On July 25, Rodriguez

1
       Statutory references are to the Penal Code.

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filed a notice of appeal from the June 4 judgment, representing that he was challenging
the validity of his plea because he “was threatened, tricked, co[erc]ed into pleading
guilty” and his lawyer did not inform him of his rights and lied to him in connection with
the plea. The court granted the request for a certificate of probable cause.
       We appointed counsel to represent Rodriguez on appeal. After examining
the record, counsel filed a Wende brief raising no issues on appeal and requesting
that we independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
On January 29, 2014, we directed appointed counsel to immediately send the record on
this appeal and a copy of the opening brief to Rodriguez and notified Rodriguez that
within 30 days from the date of the notice he could submit by letter or brief any ground of
appeal, contention or argument he wished us to consider. On February 21, Rodriguez
filed a letter arguing that he did not have effective representation in connection with his
plea and thus did not understand the constitutional rights he waived upon entering his
plea or the consequences of the plea. He also maintained that his sentence should not
have been enhanced based on great bodily injury. Rodriguez attached a letter from the
victim, dated May 3, 2013, in which she essentially repeated her testimony from the
June 4, 2013 hearing that Rodriguez did not cause her injuries, which conflicted with the
report she gave to the police on the night of incident leading to the felony complaint.
       We have examined the entire record on appeal, independently and in connection
with Rodriguez’s letter. Rodriguez appealed from the judgment, which was entered
before he complained about his plea. The appellate record does not provide a basis for
determining on direct appeal that Rodriguez received ineffective assistance of counsel
in connection with his no contest plea. Because judgment already had been entered,
a motion under section 1018 to withdraw the plea was not available to him. (§ 1018,
subd. (a) [permitting a motion to withdraw the plea before judgment or within six months
after an order of probation is granted if judgment is suspended].) As the trial court noted,
the vehicle for Rodriguez to seek to withdraw his plea would be a petition for writ of
habeas corpus, yet Rodriguez did not file such a petition. (People v. Miranda (2004)
123 Cal.App.4th 1124, 1134 [when relief is not available under § 1018, petition for writ

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of habeas corpus in the trial court is proper vehicle to challenge a plea based on
ineffective assistance of counsel]; see also People v. Mendoza Tello (1997) 15 Cal.4th
264, 266 [claim of ineffective assistance of counsel generally more appropriately
addressed in habeas corpus proceeding].) Although Rodriguez complained about the
great-bodily-injury enhancement, the court struck that enhancement. Rodriguez thus did
not receive an enhanced sentenced based on the infliction of great bodily injury. We are
satisfied that Rodriguez’s attorneys have fully complied with their responsibilities and
that no arguable appellate issue exists. (People v. Wende, supra, 25 Cal.3d at p. 441;
People v. Kelly (2006) 40 Cal.4th 106, 110.)
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.




                                                   ROTHSCHILD, Acting P. J.
We concur:



              JOHNSON, J.



              MILLER, J.*




*
        Judge of the Los Angeles Superior Court, Assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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