THE PEOPLE v. DWAYNE GIOVANNI WILCHER

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. DWAYNE GIOVANNI WILCHER, Defendant and Appellant.

F058581

Decided: June 21, 2010

Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

*Before Levy, A.P.J., Dawson, J., and Hill, J.

On May 31, 2009, Bakersfield Police officers saw a crowd approaching them in the downtown area and heard a gunshot.   Several people pointed to two males who were walking rapidly away from the area.   The officers yelled for them to stop and the two males began running.   Appellant, Dwayne Giovanni Wilcher, was seen holding a firearm and later was found hiding behind a trash can in an alley.   A search of the area uncovered a .32-caliber semiautomatic pistol.

A man with a gunshot wound in the chest was transported to the Kern Medical Center and interviewed by police.   According to the victim, he was in a bar when someone asked him where he was from.   The man became nervous and left.   As he waited in line for a bottle of water, he heard two subjects arguing.   He began to run after hearing a gunshot.   He heard a second gunshot and realized he had been shot.

Wilcher was also interviewed that night and stated that he was approximately 25 feet from the victim when the victim was shot.   When Wilcher heard the gunshot, he ran to the location in the alley where he was found hiding.   Wilcher denied having a firearm.

On June 2, 2009, the district attorney filed a complaint charging Wilcher with assault with a semiautomatic firearm (count 1/Pen.Code, § 245, subd. (b)), assault with a firearm (count 2/Pen.Code, § 245 subd. (a)(2)), possession of a firearm by a felon (count 3/Pen.Code, § 12021, subd. (a)(1)), participating in a criminal street gang (count 4/Pen.Code, § 186.22, subd. (a)), resisting arrest (count 5/Pen.Code, § 148, subd. (a)(1)).   Counts 1 through 4 also alleged a serious felony enhancement, a prior prison term enhancement, and that Wilcher had a prior conviction within the meaning of the three strikes law.   (Pen.Code, § 667, subds.(b)-(i).)   Counts 1 through 3 also alleged a gang enhancement (Pen.Code, § 186.22, subd. (b)(1)) and counts 1 and 2 alleged a personal use of a firearm enhancement (Pen.Code, § 12022.5, subd. (a)) and a great bodily injury enhancement (Pen.Code, § 12022.7, subd. (a)).

On June 16, 2009, Wilcher pled no contest to assault with a firearm and admitted the prior prison term enhancement and the three strikes law allegations in exchange for a stipulated nine-year term and the dismissal of the remaining counts and enhancements.

On August 9, 2009, based on discovery the prosecutor provided to defense counsel, the court allowed Wilcher to withdraw his plea and enter a new plea agreement.   The new plea agreement provided that in exchange for Wilcher's no contest plea to being a felon in possession of a firearm and misdemeanor being a member of a criminal street gang and his admission that he had a prior conviction within the meaning of the three strikes law, Wilcher would be sentenced to a stipulated, six-year term.   The court then sentenced Wilcher as per his negotiated plea to the aggravated term of three years on his possession of a firearm conviction, doubled to six years because of his prior strike conviction, and a concur

rent 90-day term on the remaining count.

Wilcher's appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record.  (People v. Wende (1979) 25 Cal.3d 436.)   However, in a letter filed on January 7, 2010, Wilcher contends he received ineffective representation in entering his second plea because his defense counsel did not give the judge certain “character letters” or a letter from Wilcher detailing the prosecutor's threat to add additional charges if Wilcher did not accept the second plea bargain.   Wilcher's ineffective assistance of counsel claim is not cognizable on appeal because it relies on evidence outside the record.   (People v. Williams (1988) 44 Cal.3d 883, 917, fn.   12 [“The scope of an appeal is, of course, limited to the record of the proceedings below”].)

Following independent review of the record, we find that no reasonably arguable factual or legal issues exist.1

The judgment is affirmed.

FOOTNOTES

FN1. On October 11, 2009, the California Legislature amended Penal Code section 4019 effective on January 25, 2010, to increase the number of presentence days of conduct credit certain defendants can earn.   (Stats.2009-2010, 3d Ex.Sess.(S.B.28), § 50, eff.   Jan. 25, 2010.)   In pertinent part, Penal Code section 4019 now provides that any person who is not required to register as a sex offender, and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in Penal Code section 1192.7, or a violent felony as defined in Penal Code section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.Wilcher is not eligible for the increased presentence conduct credit provided by the amendment to Penal Code section 4019 because in the instant proceedings, Wilcher admitted that he had a prior conviction for a serious or violent felony within the meaning of the three strikes law.   (Pen.Code, § 4019, subd. (b)(2)).   In any event, under Penal Code section 3, it is presumed that a statute does not operate retroactively “absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application].”  (People v. Alford (2007) 42 Cal.4th 749, 753-754.)   The Legislature neither expressly declared, nor does it appear by, “clear and compelling implication” from any other factor(s), that it intended the amendment to operate retroactively.  (Ibid.) Therefore, the amendment applies prospectively only.   We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively.   However, the factors upon which the court based that conclusion that the Penal Code section 3 presumption was rebutted in that case do not apply to the amendment to Penal Code section 4019.   We conclude further that prospective-only application of the amendment does not violate Wilcher's equal protection rights.   Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose.   (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)The issue of whether the amendment applies retroactively is currently before the California Supreme Court in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, and People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963..  FN1. On October 11, 2009, the California Legislature amended Penal Code section 4019 effective on January 25, 2010, to increase the number of presentence days of conduct credit certain defendants can earn.   (Stats.2009-2010, 3d Ex.Sess.(S.B.28), § 50, eff.   Jan. 25, 2010.)   In pertinent part, Penal Code section 4019 now provides that any person who is not required to register as a sex offender, and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in Penal Code section 1192.7, or a violent felony as defined in Penal Code section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.Wilcher is not eligible for the increased presentence conduct credit provided by the amendment to Penal Code section 4019 because in the instant proceedings, Wilcher admitted that he had a prior conviction for a serious or violent felony within the meaning of the three strikes law.   (Pen.Code, § 4019, subd. (b)(2)).   In any event, under Penal Code section 3, it is presumed that a statute does not operate retroactively “absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application].”  (People v. Alford (2007) 42 Cal.4th 749, 753-754.)   The Legislature neither expressly declared, nor does it appear by, “clear and compelling implication” from any other factor(s), that it intended the amendment to operate retroactively.  (Ibid.) Therefore, the amendment applies prospectively only.   We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively.   However, the factors upon which the court based that conclusion that the Penal Code section 3 presumption was rebutted in that case do not apply to the amendment to Penal Code section 4019.   We conclude further that prospective-only application of the amendment does not violate Wilcher's equal protection rights.   Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose.   (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)The issue of whether the amendment applies retroactively is currently before the California Supreme Court in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, and People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.

THE COURT *