Opinion
F085658
09-26-2023
THE PEOPLE, Plaintiff and Respondent, v. VICTOR PADILLA, JR., Defendant and Appellant.
Gabriel Silvers, 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NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF174657D Tiffany E. Organ-Bowles and J. Eric Bradshaw, Judges. [ǂ]
Gabriel Silvers, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
STATEMENT OF APPEALABILITY
This appeal is from a final judgment following a no contest plea which disposed of all issues between the parties. (Pen. Code § 1237, subd. (a).)
All statutory references are to the Penal Code unless otherwise stated.
STATEMENT OF THE CASE
On October 26, 2021, a preliminary hearing was held in Department 13 of the Kern County Superior Court after which Padilla was held to answer on all charges.
On November 1, 2021, the District Attorney filed a five-count information charging Padilla with assault by a person undergoing a life sentence (§ 4500, subd. (a); count 1); assault by a person while confined in state prison (§ 4501, subd. (a); count 2); resisting an executive officer from performing his duties (§ 69; count 3); assault likely to cause great bodily injury by a person confined in state prison (§ 4501, subd. (b); count 4); and battery by a person confined in state prison upon a person not confined in state prison (§ 4501.5, count 5). As to counts 1 and 2, there were enhancements for personal infliction of great bodily injury (§ 12022.7). In addition, as to all counts, priors were alleged for murder as a serious or violent felony (§ 187, subd. (a)), and attempted murder as a serious or violent felony (§ 664/187, subd. (a)).
On October 5, 2022, a motion to amend the information was filed alleging aggravating circumstances. The motion was granted, and the amended information was filed.
Subsequent references to dates are to dates in 2022 unless otherwise stated.
On October 11, a Pitchess motion was filed. On November 9, the Pitchess motion was heard, an in-camera hearing was held and the motion was granted in part and denied in part.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
On December 1, Padilla agreed to enter a plea on counts 2 and 3, with an admission to both strikes. The court granted Padilla's Romero motion as to one strike. Padilla then pled no contest to counts 2 and 3. There was a stipulated factual basis for the plea. All other counts and allegations were then dismissed by the court.
People v. Superior Court (Romero) (1996) 13 Cal.4th 997.
At sentencing on December 21, the trial court struck one strike for each count and sentenced Padilla to five years, four months, consecutive to the other time he was serving.
On January 30, 2023, Padilla filed a timely notice of appeal and requested a certificate of probable cause which the trial court granted.
The facts are drawn from the October 26, 2021, preliminary hearing transcript.
On March 9, 2018, Padilla was an inmate at Kern Valley State Prison. At approximately 2:37 p.m., guards received an alarm and were directed to the Facility B upper yard. Correctional Officer Jose Gamez observed Padilla and another man making stabbing motions towards the torso of a third inmate, Pacheco, who was against a wall. The officer did not see any actual stabbing, just the motions. Officer Gamez ordered the two men to get down. One complied; the other, Padilla, allegedly began walking away.
Officer Gamez gave Padilla another order to get down and sprayed him with pepper spray. Padilla then charged the officer. The two fell to the floor together. Officer Gamez and Padilla struck each other for 10-15 seconds until four to five officers arrived and pulled Padilla off of Officer Gamez, cuffed him, and laid him on his abdomen.
Officer Gamez suffered a nerve injury and bruising to his shoulder. A weapon was found on the floor near where Padilla struggled with Officer Gamez. When Officer Rios arrived, he saw that Padilla's head was covered with blood. Officer Rios saw the weapon, which he described as a five to five and half inch metal inmate manufactured weapon with a brown leather handle.
The inmate who had been attacked, Pacheco, was taken to the triage center. A prison nurse observed stab wounds and blood on Pacheco's face, two puncture wounds on his face, and puncture wounds on his torso and back.
At the hearing on the Pitchess motion, Padilla maintained, through his counsel, that he was assaulted by correctional officers while other assaults were occurring in the prison yard. He further maintained that the weapon had been moved and placed near him to make him appear guilty. Padilla stated that there had been no investigation into the assault by the officers, and no photographs taken of their injuries.
APPELLATE COURT REVIEW
Padilla's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes the declaration of appellate counsel indicating Padilla was advised he could file his own brief with this court. By letter on July 24, 2023, we invited Padilla to submit additional briefing. To date, he has not done so.
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 Padilla.
DISPOSITION
The judgment is affirmed.
[*] Before Detjen, Acting P. J., Meehan, J. and Snauffer, J.
[ǂ] Judge Organ-Bowles presided at the change of plea hearing; Judge Bradshaw presided at sentencing.