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Filed 8/21/23 P. v. Lucero 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DOLORES MARIA LUCERO,

Defendant and Appellant.

C097595

(Super. Ct. No. 12F2037)

Defendant Dolores Maria Lucero appeals the trial court’s denial of her motion to 

vacate her conviction because of newly discovered evidence of actual innocence. 

Appointed counsel for defendant asks this court to conduct an independent review of the 

record to determine whether there are any arguable issues on appeal, and defendant has 

filed a supplemental brief. (People v. Wende (1979) 25 Cal.3d 436; People v. Delgadillo

(2022) 14 Cal.5th 216 (Delgadillo).) We have considered defendant’s supplemental brief
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and conducted an independent review of the record, and we will affirm the trial court’s 

order. 

FACTS AND HISTORY OF THE PROCEEDINGS

In 2014, a jury found defendant guilty of preparing false documentary evidence. 

The trial court suspended the imposition of sentence and placed defendant on probation, 

which defendant successfully completed early.

In September 2022, defendant moved to vacate her conviction pursuant to Penal 

Code section 1473.7 (statutory section citations that follow are found in the Penal Code 

unless otherwise stated). Specifically, defendant argued: (1) one of the jurors had 

indicated she did not believe defendant was guilty of a felony and (2) defendant’s trial 

counsel had been ineffective. The trial court found defendant failed to carry her burden 

to establish actual innocence or ineffective assistance of counsel and denied the motion.

DISCUSSION

Defendant’s appointed counsel asks this court to conduct an independent review of 

the record to determine whether there are any arguable issues on appeal. (People v. 

Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of her right to file a 

supplemental brief, and she has done so. 

A. Procedures for Review in This Case

“The prophylactic procedures in Wende are ‘relevant when, and only when, a 

litigant has a previously established constitutional right to counsel.’ ” (Delgadillo, supra, 

14 Cal.5th at p. 224.) Wende requirements “do not apply to an appeal from the denial of 

postconviction relief, even if the defendant has a state-created right to the appointment of 

counsel for that appeal.” (Id. at p. 226.) In such cases, if the defendant files a 

supplemental brief, “the Court of Appeal is required to evaluate the specific arguments 

presented in that brief and to issue a written opinion. The filing of a supplemental brief 
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or letter does not compel an independent review of the entire record to identify unraised 

issues.” (Id. at p. 232.) While the Delgadillo opinion considered it “possible that some 

more unusual postconviction context will call for additional or more specialized 

requirements” (id. at p. 231), we conclude that is not the case here.

Nevertheless, we have exercised our discretion to conduct an independent review 

of the record, as permitted by Delgadillo. (Delgadillo, supra, 14 Cal.5th at p. 232.) We 

found no arguable errors that would result in a disposition more favorable to defendant, 

so we address only those issues raised in her supplemental brief.

B. Analysis

In her supplemental brief, defendant maintains her ineffective assistance of 

counsel claim, and adds two new claims: An investigator tampered with a witness before 

her trial and the trial court violated her right to counsel at the hearing on her motion to 

vacate. 

1. Ineffective Assistance of Trial Counsel

Defendant contends her trial counsel performed ineffectively by failing to 

undertake a thorough investigation and failing to call a specific witness—the attorney 

who drafted the declarations that the jury ultimately determined were false documentary 

evidence. We hold defendant has failed to establish ineffective assistance of counsel.

“To establish constitutionally inadequate representation, a defendant must 

demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective 

standard of reasonableness under prevailing professional norms; and (2) counsel’s 

representation subjected the defendant to prejudice, i.e., there is a reasonable probability 

that, but for counsel’s failings, the result would have been more favorable to the 

defendant.” (People v. Samayoa (1997) 15 Cal.4th 795, 845; see Strickland v. 

Washington (1984) 466 U.S. 668, 687-696.) “[R]arely will an appellate record establish 

ineffective assistance of counsel.” (People v. Thompson (2010) 49 Cal.4th 79, 122.) 
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“ ‘When a defendant on appeal makes a claim that his counsel was ineffective, the 

appellate court must consider whether the record contains any explanation for the 

challenged aspects of representation provided by counsel. “If the record sheds no light

on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked 

for an explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation,’ [citation], the contention must be rejected.” ’ ” (Samayoa, at 

p. 845.)

Here, the record sheds no light on defense counsel’s investigation of the case or 

why he chose not to call the attorney as a witness. Further investigation could have been 

unwarranted, and the witness could have been hostile or incriminated defendant. 

Accordingly, defendant has failed to establish ineffective assistance of counsel.

2. Witness Tampering

Defendant points to an interview transcript attached to her brief and argues it 

shows investigators from the Shasta County District Attorney’s office tampered with a 

witness. Defendant does not explain how the excerpt she quotes constitutes witness 

tampering, does not cite to any law defining witness tampering, and does not explain how 

such tampering, if proven, would make her actually innocent of preparing false 

documentary evidence. In any event, this transcript is not part of the record, so we will 

not consider it here. (People v. Leonard (2007) 40 Cal.4th 1370, 1393 [“we review the 

appellate record for error, without considering matters not presented to the trial court”]; 

In re Zeth S. (2003) 31 Cal.4th 396, 405 [“It has long been the general rule and

understanding that ‘an appeal reviews the correctness of a judgment as of the time of its 

rendition, upon a record of matters which were before the trial court for its 

consideration’ ”].) 
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3. Right to Counsel

Finally, defendant argues the trial court violated her right to counsel at the hearing 

on her motion to vacate her conviction. Defendant did not raise this issue below. Rather, 

when the trial court asked, “But you’re representing yourself today on [the motion to 

vacate her conviction], and that is what you want to do?” Defendant responded, “Yes, 

Your Honor.” We conclude defendant has failed to demonstrate reversible error.

“To demonstrate error, appellant must present meaningful legal analysis supported 

by citations to authority and citations to facts in the record that support the claim of error. 

[Citations.] When a point is asserted without argument and authority for the proposition, 

‘it is deemed to be without foundation and requires no discussion by the reviewing court.’ 

[Citations.] Hence, conclusory claims of error will fail.” (In re S.C. (2006) 

138 Cal.App.4th 396, 408.)

Here, defendant has not cited any authority establishing a right to counsel at the 

hearing. (See Delgadillo, supra, 14 Cal.5th at p. 226 [“ ‘there is no constitutional right to 

the effective assistance of counsel’ in state postconviction proceedings”]; cf. People v. 

Fryhaat (2019) 35 Cal.App.5th 969, 978 [former section 1473.7, subdivision (d) does not 

expressly provide for a right to counsel, but, if the moving party is indigent and cannot 

attend the hearing because he or she is in federal custody awaiting deportation, the trial 

court should appoint counsel].) Nor has defendant explained how the trial court violated 

her rights by acceding to her request to represent herself. Accordingly, we see no merit 

in this argument.
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DISPOSITION

The order denying defendant’s motion to vacate her conviction is affirmed. 

 

HULL, J.

We concur:

 

EARL, P. J.

 

DUARTE, J.