People v. Briley CA5

California Court of Appeal Jan 12, 2022 No. F082579Unpublished

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Holding. The court affirmed the denial of the defendant's motion to recall his sentence, finding no arguable error in the record and noting that his claims of ineffective assistance of counsel are more appropriately addressed via habeas corpus.

Issues

Whether the trial court erred in denying the defendant's motion to recall his sentence under Penal Code section 1170, subdivision (d).
Whether the defendant's claims of ineffective assistance of counsel are cognizable on direct appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The order denying Briley’s motion to recall his sentence is affirmed.”

“Briley may elect to pursue a petition for habeas corpus, but this claim cannot be properly evaluated on direct appeal.”

“Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to Briley.”

Filed 1/12/22 P. v. Briley CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F082579 Plaintiff and Respondent, (Super. Ct. No. VCF347137) v.

TERRY CHARLES BRILEY, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Tulare County. Nathan G. Leedy, Judge. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Smith, J. and Snauffer, J.

STATEMENT OF APPEALABILITY This appeal is limited to matters occurring after entry of the plea which does not challenge the plea, and thus lies pursuant to California Rules of Court, rule 8.304(b)(4)(B). STATEMENT OF THE CASE On February 15, 2017, the Tulare County District Attorney’s office filed the case complaint. On March 20, 2017, criminal proceedings were suspended for an evaluation to determine Briley’s competency to stand trial. On April 27, 2017, Briley was found not competent to stand trial. On August 21, 2017, Briley was transferred to Atascadero State Hospital for competency restoration. His competency was restored and on September 21, 2017, he was transported back to the custody of the Tulare County Sheriff’s Department. On September 29, 2017, criminal proceedings were reinstated, and Briley entered a plea of no contest to robbery with a firearm under Penal Code sections 211 and 12022.53, subdivision (b). On October 30, 2017, the trial court sentenced Briley to prison for 12 years. As relevant here, on March 8, 2021, Briley filed a motion to recall his sentence under Penal Code section 1170, subdivision (d). On March 9, 2021, the trial court denied the motion for lack of jurisdiction. On March 26, 2021, Briley filed a notice of appeal. STATEMENT OF FACTS1 The record on appeal does not specifically include a factual basis for Briley’s plea since both parties stipulated to a factual basis based upon the police report.

1 We draw the facts stated below from the probation officer’s report.

People v. Briley CA5

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