Opinion
H030973
5-23-2007
THE PEOPLE, Plaintiff and Respondent, v. JAMES MARIO BARNES, Defendant and Appellant.
NOT TO BE PUBLISHED
On August 1, 2006, after the court advised defendant of his Boykin/Tahl rights, defendant waived those rights and pleaded guilty to the following charges contained in two informations. In case number CC500804, defendant pleaded guilty to first degree attempted premeditated murder of Dennis Jacquez (Pen. Code, §§ 187, 664, 189, count one). Defendant admitted the allegation that during the commission of the crime alleged in count one, he was a principal and a principal personally and intentionally discharged a firearm. (Pen. Code, §§ 12022.53, subd. (a)(1).) In addition, defendant pleaded guilty to possession of a firearm by a felon (Pen. Code, § 12021, subd. (a), count two); vehicle theft with a prior conviction (Veh. Code, §§ 10851, subd. (a), 666.5, count three); possession for sale of controlled substance (Health & Saf. Code, § 11378) while armed (Pen. Code, § 12022, subd. (c), count four); and possession of ammunition by a convicted felon (Pen. Code, § 12316, subd. (b), count five). Defendant admitted that he had served two prior prison terms. (Pen. Code, § 667.5, subd. (b).)
Boykin v. Alabama (1969) 395 U.S. 238, In re Tahl (1969) 1 Cal.3d 122.
The court identified the victim as Dennis Arquez, however, both the probation report and defendant identify the victim as Dennis Jacquez.
In case number CC511291, defendant pleaded guilty to two counts of residential robbery (Pen. Code, §§ 211, 212.5, counts one and two—victims Kumar Pawan and Kumar Rayess) and admitted the allegation that in the commission of counts one and two at least one principal personally used a firearm (Pen. Code, § 12022.53, subds. (b) and (e)). In addition, defendant pleaded guilty to carjacking (Pen. Code, §215, count three—victim Phuoc Kim) and admitted the allegation that in the commission of count three he was a principal and at least one principal personally used a firearm (Pen. Code, § 12022, subd. (a)(1)); taking and driving a vehicle with a prior conviction (Veh. Code, § 10851, subd. (a), Pen. Code, § 666.5); and possession of a gun by a convicted felon (Pen. Code, § 12021, subd. (a)). Again, defendant admitted that he had served two prior prison terms.
The court found a factual basis for the pleas in counsels stipulations and accepted the pleas as knowing and voluntary.
On September 14, 2006, the court sentenced defendant in case number CC511291 to an aggregate term of 21 years, eight months. In case number CC500804, the court sentenced defendant to an aggregate determinate term of four years, eight months consecutive to life, for a total of 26 years, four months consecutive to the life term for the two cases.
We appointed counsel to represent defendant in this court. Counsel filed an opening brief that stated the facts, but raised no specific issues. We notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant submitted a letter to this court in which he states that before he pleaded guilty he received a letter from a girl who was in Dennis Jacquezs car at the time Jacquez was shot and she knew that defendant "had nothing to do with the shooting." He told his attorney about the letter, but he "waved it off." Then, essentially, defendant claims that trial counsel was ineffective in failing to submit letters in mitigation of sentence to the trial court, and claims that appellate counsel was ineffective in misstating some facts of his case. Finally, defendant claims that there was nothing premeditated about the attempted murder.
Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded there is no arguable issue on appeal. 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 certain motions, stipulations, or other aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.) In addition, we have described defendants contentions. We will explain why we have rejected them. (Id. at p.113.)
Facts and Procedural History
The facts are taken from the probation report.
In June 2005, a maroon Toyota Camry was stolen from Daniel Garcia while Garcia was shopping in Target. On July 25, 2005 at about 5:00 p.m. Dennis Jacquez received a phone call from defendant asking him "for a ride to buy some shoes." Jacquez drove to Stipe Elementary School to wait for the defendant. Jacquez called defendant on the phone and defendant told him to wait for him. Jacquez expected to see defendant walking, instead defendant drove up in a maroon or brown Toyota or Nissan sedan with Florencio Ventosa in the front passenger seat. Defendant stopped the car he was driving next to Jacquezs car. Ventosa got out of the car and shot Jacquez as he sat in his car. Jacquez stated that the gun Ventosa used, a .357 revolver, belonged to defendant. He knew this because he had seen it before.
Three days later a burgundy colored Camry was involved in a dual armed robbery of Kumar Pawan and Kumar Rayess in the carport of their residence. At about 5:00 a.m. on the same day defendant was involved in forcing Phuoc Kim at gunpoint to relinquish his 2001 Honda Accord just after Kim parked in his driveway. Kim reported that the perpetrator of the carjacking wore a red face mask.
Items belonging to defendant were found in the Accord when it was recovered. Defendant, a parolee at large, was arrested on August 9, 2005. He was seen driving a stolen Chrysler Sebring. Defendant was found to be in possession of just under one-half gram of methamphetamine, a .38 caliber revolver and extra ammunition. Defendant admitted driving the Camry to the scene of Jacquezs shooting and he admitted being involved in the armed robbery of Pawan and Rayess.
Defendant told officers numerous versions of what happened on July 25, 2005, but did admit having a .357 revolver until a few weeks before he was arrested. He denied knowing that Ventosa had a gun or that Jacquez was going to be shot.
Before sentencing, defense counsel filed a motion to strike the premeditation and deliberation finding, attached to which were numerous documents including defendants social history, which documented his extensive drug use and steps taken in jail to address his drug use. The court denied the motion, but commended defendant for his efforts in jail in graduating from the "Breaking Barriers Program."
Defendants Contentions
Inasmuch as defendant raises various ineffective assistance of trial counsel claims, these claims 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].) Inasmuch as defendant raises a claim of ineffective assistance of appellate counsel for misstating the facts of Jacquezs shooting, we find the record supports appellate counsels recitation of the facts. Finally, inasmuch as defendant claims there was nothing premeditated about the attempted murder, a plea of guilty waives any right to raise questions regarding the evidence. (People v. Turner (1985) 171 Cal.App. 3d 116, 125.)
Disposition
The judgment is affirmed.
We concur:
RUSHING, P. J.
PREMO, J.