Opinion
H046466
02-14-2020
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ORESTES GUERRERO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1774690)
Varrio Sur Town (VST) is a Sureno criminal street gang. VST associates with the color blue, and its rivals, Nortenos, are associated with the color red. In March 2008, Homer Resendez, who was wearing a red hat, was shot to death by VST gang members in front of his home, which was in VST's gang territory. Several bullets penetrated Resendez's home. His disabled wife, her son, and her granddaughter, who were within the home at the time of the shooting, were not injured. Although defendant Richard Orestes Guerrero was not present when Resendez was shot, he was a VST gang member, and the gun that fired most of the shots at Resendez was subsequently found hidden in a backpack in defendant's garage.
Defendant was originally convicted by jury trial of first degree murder (Pen. Code, § 187), shooting at an occupied dwelling (§ 246), and assault with a firearm (§ 245, subd. (a)(2)). The first jury also found true gang (§ 186.22, subds. (b)(1)(A), (b)(1)(B), (b)(1)(C)) and firearm (§§ 12022.5, subd. (a), 12022.53, subd. (d)) enhancement allegations. After he was sentenced to 50 years to life, he appealed, and we reversed the judgment due to ineffective assistance of counsel.
Subsequent statutory references are to the Penal Code.
On remand, after a second jury trial resulted in a mistrial, defendant entered into a plea agreement. He agreed to plead no contest to voluntary manslaughter (§ 192, subd. (a)) and aggravated assault (§ 245, subd. (a)(4)), admit a gang enhancement allegation (§ 186.22, subd. (b)(1)(C)) as to the manslaughter count, and waive "all appellate rights" in exchange for dismissal of the original counts and enhancement allegations and a stipulated prison term of 17 years.
The jury returned a not guilty verdict on the first degree murder count, but it was hopelessly deadlocked on the lesser included offenses of that count and on the other counts. The court declared a mistrial. --------
At the change-of-plea hearing, the court explained to defendant "that you are waiving your right to appeal in this matter, which means that any issues that you might bring up with respect to the conduct of the proceedings all the way through any proceedings today, any difficulties with your plea, et cetera, you're waiving those rights to appeal that, in other words, to have a higher court take a look at what we have done here in the trial court. The only exception is if you have issues related to ineffective assistance of counsel, those cannot be waived. Do you understand all of that?" Defendant replied: "Yes, your honor." The court asked him: "Do you give up your rights to appeal in this case?" He responded: "Yes, your honor."
The court committed defendant to state prison for the agreed 17-year term. Defendant waived his right to "a hearing on his ability to pay" fines, fees, and penalty assessments. The court imposed the minimum restitution fund fine, a $60 court security fee, and a $60 criminal conviction fee. It did not impose a criminal justice administration fee because it found that there was "no evidence . . . that [defendant] has the ability to pay that amount." The court awarded defendant 4,008 days of custody credit (which the parties agreed was correct) and noted that there would be additional worktime credit "to be determined by CDCR." The court also entered an uncontested restitution order. Defendant timely filed a notice of appeal and sought and obtained a certificate of probable cause.
Appointed appellate counsel has filed an opening brief that states the case and the facts but raises no issues. Defendant was notified of his right to submit written argument on his own behalf, and he submitted a letter in which he raises several concerns.
Defendant contends that his plea was invalid because (1) the prosecution did not explain why it was dismissing the other charges, as required by section 1192.6, subdivision (b), (2) his pleas were never accepted by the prosecution or approved by the court, as required by section 1192.5, and (3) section 1192.7 precluded plea bargaining in this case due to the fact that the charges were serious felonies and there was a firearm use enhancement allegation.
His first two challenges to his pleas and admission are factually incorrect. The prosecutor explained at the change-of-plea hearing that it "will dismiss all the remaining counts and allegations" "[i]f the defendant pleads guilty or no contest to counts 4 and 5, and waives all appellate rights . . . ." Both the prosecutor and the trial court signed the written plea agreement approving and accepting the pleas and admission. His third challenge to his pleas and admission is legally invalid. A defendant cannot successfully challenge his pleas for the first time on appeal based on a violation of section 1192.7. (People v. Webb (1986) 186 Cal.App.3d 401, 410-411.)
His remaining claims also lack any basis in the appellate record. Defendant mentions "suppression of evidence," but he gives no indication of the basis for this "claim." Similarly, he mentions "the 1118 motion" and his right to a "speedy trial," but he gives no indication of how these "claim[s]" had any impact on his pleas and admission or his sentencing. Defendant claims that he received ineffective assistance of counsel, but much of the substance of his claim appears to be limited to his assertion that "I did not want this plea bargain" and instead "wanted to go to trial on second degree." The appellate record contains no support for these assertions. He also seems to suggest that his attorney at the second trial failed to seek an "D.N.A. expert," but again he does not explain how that impacted his decision to enter into the plea agreement or his sentencing. Finally, defendant claims that he is innocent and asserts "actual innocence," but we are limited to the appellate record, which contains no support for his claim.
Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Elia, J.