Opinion
H036959
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. WILLIAMS RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED 1N OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CC942038)
Following a negotiated disposition in Santa Clara County Superior Court Case No. CC942038, Williams Rodriguez (defendant) appeals from his conviction of one count of attempted robbery of an inhabited dwelling while armed (Pen. Code, §§ 664/211-212.5, count two) and one count of robbery while armed (Pen. Code, § 211/212.5, subd. (c), count three).
Defendant's counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende was being requested.
On October 18, 2011, we notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant filed a supplemental letter brief in which, in essence, he asserts that he received ineffective assistance of counsel because his counsel told him to waive a preliminary hearing in this case, but because he does not speak English he did not understanding his due process rights. Further, the officer that arrested him committed perjury as his written report conflicted with his testimony.
Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) We have included information about aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.) We will consider defendant's letter brief pursuant to People v. Kelly, supra 40 Cal.4th 106, and we will explain why we have rejected his contentions. (Id. at p. 113.)
Facts and Proceedings Below
The facts are taken from the probation officer's report in this case.
Count Two—the Moreno Attempted Robbery
Defendant was overheard by police, via a wiretap, telling his uncle that he was going to beat up "Moreno" because he " 'cut into' " his marijuana. Defendant called another male and asked for a gun. They arranged to meet at a bar. Defendant was observed by officers meeting with this male and then leaving the bar area. Defendant drove to Moreno's house, knocked on the door and asked to speak to him outside. Defendant asked Moreno if he had the money he owed him; defendant held a gun to Moreno's head and said, " 'If you think I'm playing. I'm gonna kill you.' " Moreno agreed to come up with the money and defendant left.
Count Three—Robbery of the Jewelry Store
Defendant and a codefendant robbed a jewelry store at gun point; each wore a bandana over his face. Both brandished weapons, pointing their guns at the victims while ordering them to get on the ground.
By way of a seventh amended complaint, the Santa Clara County District Attorney charged defendant with attempted robbery of an inhabited building (Pen. Code, §§ 664, 211-212.5, subd. (a), count two) and second degree robbery of Ruby Jewelers (Pen. Code, §§ 211-212, count three). The complaint contained allegations that in the commission of counts two and three defendant was armed with a gun within the meaning of Penal Code section 12022, subdivision (a)(1); and had a prior felony conviction for assault with a deadly weapon inflicting great bodily injury, which was also a prior strike conviction within the meaning of Penal Code sections 667.5 and 1192.7.
Initially, defendant was charged in case number CC942038 with the murder of Vahid Hosseini and the robbery that accompanied the murder. It was not until the third amended complaint that a count seven was added involving the Moreno attempted robbery. In a fourth amended complaint, this charge was changed to count eight and in a fifth amended complaint to count nine. In a sixth amended complaint, the Moreno robbery charge remained as count nine, but count 11 charged defendant with the jewelry store robbery. During November 2010, an extensive preliminary hearing was held on those charges. However, at the end of the hearing the court put the matter over until December 13, 2010, for submission and ruling. On December 7, 2010, the court vacated that date and continued the matter until January 5, 2011. When the seventh amended complaint was filed, the matter was still under submission. The seventh amended complaint dropped the murder charge, but charged several codefendants in count one with conspiracy to obstruct justice (Pen. Code, § 182, subd. (a)(5)) in connection with the investigation into the murder. Thus, when defendant entered his pleas he had never been held to answer on any of the charges.
On February 9, 2011, the prosecution sought leave to file the seventh amended complaint, which was granted; defense counsel did not object. Thereafter, the court outlined its understanding of the resolution of the case. Specifically, the court stated that defendant would be offering pleas of no contest as charged in the seventh amended complaint and in two other cases the charges would be reduced to misdemeanors and a second charge in one case would be dropped. In exchange for his pleas in all three cases, the court anticipated that a Romero motion would be filed, but even if granted, the sentencing range would be a seven year bottom up to an 11 year eight month top. Both defense counsel and the prosecutor confirmed that that was the case. The court asked defendant if that was his understanding and he confirmed that it was.
People v. Superior Court (Romero) 1996 13 Cal.4th 497.
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The court asked the prosecutor to state the reasons on the record for the disposition. The prosecutor stated that after evaluating the evidence produced at the preliminary examination, he felt the proposed disposition would not result in a substantial reduction in the sentence and having removed the murder charge it would preserve it for further investigation.
The court then addressed defendant. The court explained that the allegations relating to the murder charge and the robbery that accompanied it were being taken out of the disposition, but that the prosecution was free to re-file the murder charge at a later date. The court asked defendant if he understood that. Defendant confirmed that he did. The court asked defense counsel if he had explained that to defendant. Defense counsel confirmed that he had.
Thereafter, the court proceeded to voir dire defendant asking him if he had consumed any alcohol or drugs within the past 24 hours and if he had had any problems talking with his attorney. To both questions, defendant confirmed that he had not. Defendant said that he had had enough time to talk to his attorney and discuss possible defenses and the consequences of his decision to plead guilty and was satisfied with his advice. The court asked defense counsel if he had discussed with defendant his constitutional rights, the consequences of his pleas and admissions, and whether he was satisfied that the defendant understood his situation. Defense counsel confirmed that he had and was satisfied that the defendant understood his situation.
After confirming that no other promises had been made to the defendant, the court told defendant that he had a right to a preliminary examination at which he would have the right to see, hear and have his attorney question the witnesses against him. Defendant confirmed that he understood and then waived his right to a preliminary examination.
Subsequently, the court advised defendant of his trial rights, specifically, of his privilege against self-incrimination, his right to confront his accusers and his right to trial by jury as required by Boykin v. Alabama (1969) 395 U.S. 238, and In re Tahl (1969) 1 Cal.3d 122, disavowed in part in Mills v. Municipal Court (1973) 10 Cal.3d 288, 306-307, fn. 16, and overruled in part in People v. Howard (1992) 1 Cal.4th 1132, 1175 on other grounds. Defendant said that he understood and then freely and voluntarily waived those rights. Further, the court advised defendant that he had a right to testify as well as subpoena witnesses. Defendant stated that he understood and gave up those rights. The court told defendant that his maximum prison commitment without a plea bargain was 17 years and eight months; that on release from prison he would be on parole for three years; and if he violated his probation he could be sent back to prison for up to one year. Defendant confirmed that he understood. The court reiterated the terms of the plea bargain. Again, defendant said he understood.
The court told defendant that if he was on parole or probation a guilty plea could result in the revocation of that status. The court advised defendant of the possible immigration consequences of his pleas; and that there were other consequences of his pleas, including that he would have to pay direct victim restitution, a restitution fund fine of up to $10,000; that he would have to serve 85 percent of the sentence imposed; and that because he was pleading to two strikes that if he were to be convicted in the future of any felony he would be subject to a 25 years to life term. Defendant confirmed that he understood all of these advisements. The court asked defendant if anyone had threatened him in any way to persuade him to plead guilty. Defendant said, "No."
Counsel stipulated to a factual basis for the pleas and admissions based on the police reports attached to the complaints.
Thereafter, defendant entered his no contest pleas and admitted the arming allegations and prior strike and serious felony allegations. The court told defendant that his "pleas of no contest [were] exactly the same as guilty pleas." Defendant said that he understood. The court found that defendant understood the charges against him, the elements of those charges, the possible defenses and the consequences of his pleas and admissions. Further, the court found that defendant had been fully informed of his constitutional rights and had knowingly, intelligently, freely and voluntarily waived those rights. The court found a factual basis for the pleas and admissions and accepted them.
At all times throughout the proceeding defendant was assisted by a Spanish speaking interpreter.
Subsequently, on April 12, 2011, the court denied the Romero motion. The court imposed a sentence of 11 years eight months consisting of five years for count three (four years plus one year for the weapon enhancement), for count two one year eight months (one third the midterm of one year four months plus one third the weapon enhancement or four months) to be served consecutively plus five years for the serious felony enhancement. The court awarded defendant 842 days credit for time served; made a general order of restitution to the jewelry store owners in the amount of $23,125; and imposed a $200 restitution fund fine. However, as to other fines and fees, the court found that defendant did not have the present ability to pay.
Defendant filed a timely notice of appeal and sought and was granted a certificate of probable cause.
Defendant's Contentions
As to defendant's contention that he received ineffective assistance of counsel because his counsel told him to waive a preliminary hearing in this case, but because he does not speak English he did not understanding his due process rights, this claim cannot be resolved on the present record. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [an appellate court should not find ineffective assistance of counsel unless all facts relevant to that claim have been developed in the record].) Furthermore, the record belies defendant's claim that he did not understand his due process rights. Defendant was assisted by a Spanish speaking interpreter throughout the plea hearing and was asked by the court if he understood that he had a right to a preliminary examination and all the rights that went along with that. Defendant confirmed that he did understand. Moreover, defendant sat through an extensive preliminary hearing even though he was never held to answer, which undermines his claim that he did not understand his rights.
As to defendant's general assertion that the arresting officer committed perjury during the preliminary examination, we note that defendant does not identify the officer involved or point to the place in the transcript where this perjury is alleged to have occurred. More importantly, defendant's claim that an officer committed perjury does not go to the issues fundamental to his plea: defendant's understanding of his own constitutional rights, the consequences of his plea, and the voluntariness of his decision to plead guilty. As noted, defendant stated orally on the record that he understood his constitutional rights and the consequences of his plea. He stated that he was not coerced into pleading guilty. He stated that he had had the opportunity to consult with counsel and that he was satisfied with his advice. Defendant's pleas satisfied constitutional standards. (Boykin v. Alabama, supra, 395 U.S. 238; In re Tahl, supra, 1 Cal.3d 122.)
Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. The penalties imposed were supported by the law and facts. At all times appellant was represented by competent counsel.
Disposition
The judgment is affirmed.
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ELIA, J.
WE CONCUR:
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PREMO, Acting P. J.
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MIHARA, J.