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People v. Aleman

California Court of Appeals, Fifth District
Jul 2, 2008
No. F054360 (Cal. Ct. App. Jul. 2, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County No. VCF164451A, Darryl B. Ferguson, Judge.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


OPINION

THE COURT

Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

On May 13, 2006, J.Y. and J.A. were walking down the street when a car stopped and the occupants asked them if they “banged.” J.Y. said he did not and the occupants began calling him a “scrap” and challenging him to fight. As J.Y and J.A began walking away, the front seat passenger, appellant Cesar Hernandez Aleman, yelled “Norte” and began shooting out of a window with a semiautomatic handgun, hitting J.Y. in the back and J.A. on the leg.

On May 17, 2006, Aleman turned himself in to Tulare Police. During a police interview, Aleman admitted shooting the victims.

On November 30, 2006, the district attorney filed an information charging Aleman with two counts each of attempted murder (Pen. Code, §§ 664/187, subd. (a)), discharging a firearm out of a car (§ 12034, subd. (c)), and assault with a semiautomatic firearm (§ 245, subd. (b)). Each count also alleged several arming enhancements (§ 12022.53, subds. (c), (d), & (e)(1)), a great bodily injury enhancement (§ 12022.7, subd. (a)) and a gang enhancement (§ 186.22, subd. (b)(1)(C)).

All further statutory references are to the Penal Code.

On August 16, 2007, Aleman pled no contest to the two counts of attempted murder (counts 1 & 2) and admitted a great bodily injury enhancement, a gang enhancement, and an arming enhancement in count 1 (§ 12022.53, subd. (c)) and a gang enhancement in count 2. In exchange for his plea, the remaining counts and enhancements would be dismissed and Aleman would receive a stipulated sentence of 40 years.

On November 8, 2007, the court sentenced Aleman to the stipulated 40-year term the middle term of seven years on Aleman’s attempted murder conviction in count 1, a 20-year arming enhancement in that count, a 10-year gang enhancement in that count, and a three-year great bodily injury enhancement in that count, and a concurrent, aggregate 17-year term on count 2.

Aleman’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a letter filed in this court on April 10, 2008, Aleman complains that he was pressured by his attorney into entering his plea. He also contends his confession is the only solid evidence against him and that it is unreliable because “it has a lot of loopholes[,]” it contains many errors, the police tricked him into giving a statement, and the night before he confessed he was up all night drinking and smoking marijuana.

Section 1237.5 provides: ‘No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.’ ‘Section 1237.5 is an exception to the general rule that appeals may not be brought by defendants who have pleaded guilty or nolo contendere. This section provides the general rule that defendants who have pleaded guilty must obtain a certificate of probable cause before they may bring an appeal.’ [Citation.]” (People v. Moore (2003) 105 Cal.App.4th 94, 99.)

Since Aleman did not obtain a certificate of probable cause he is precluded from challenging his plea on appeal by claiming that he was pressured by his defense counsel into entering a plea.

Moreover, “‘“[b]y pleading guilty, a defendant admits the sufficiency of the evidence establishing the crime, and is therefore not entitled to a review on the merits. [Citations.] ‘[I]ssues which merely go to the guilt or innocence of a defendant are “removed from consideration” by entry of the plea.’ [Citation.] Thus, claims involving sufficiency of the evidence [citation], voluntariness of an extrajudicial statement [citation], a trial court’s refusal to disclose the identity of an informant [citation], fairness of a pretrial lineup [citation], and other such issues have been held not cognizable on appeal following a guilty plea.”’” (People v. Moore, supra, 105 Cal.App.4th at p. 99.)

The validity of Aleman’s confession goes to Aleman’s guilt or innocence. Thus, the issues Aleman raises with respect to his confession are not cognizable on appeal even if he had obtained a certificate of probable cause from the trial court.

Nevertheless, our review of the record disclosed that Aleman’s abstract of judgment contains the following clerical error, which we will direct the trial court to correct. At Aleman’s sentencing hearing the court awarded him 622 days of presentence custody credit consisting of 541 days of actual custody credit and 81 days of conduct credit. Aleman’s abstract of judgment erroneously indicates that the court awarded Aleman 83 days of conduct credit.

Further, following independent review of the record we find that no reasonably arguable factual or legal issues exist.

The trial court is directed to issue an amended abstract of judgment that corrects the above-noted error in Aleman’s award of conduct credit and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.


Summaries of

People v. Aleman

California Court of Appeals, Fifth District
Jul 2, 2008
No. F054360 (Cal. Ct. App. Jul. 2, 2008)
Case details for

People v. Aleman

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CESAR HERNANDEZ ALEMAN, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Jul 2, 2008

Citations

No. F054360 (Cal. Ct. App. Jul. 2, 2008)