Opinion
F085163
06-08-2023
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID CORRAL, Defendant and Appellant.
Richard Jay Moller, 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NOT TO BE PUBLISHED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 Fresno County No. F19905518 Heather M. Jones, Judge.
Richard Jay Moller, 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 guilty plea after the denial of a motion to suppress that finally disposes of all issues between the parties. (Cal. Rules of Court, rule 8.304(b)(2);[ Pen. Code, § 1538.5, subd. (m).)[
All references to rules are to the California Rules of Court.
All statutory references are to the Penal Code unless otherwise stated.
STATEMENT OF THE CASE
On September 8, 2022,[ the Fresno County District Attorney filed a first amended information charging Michael David Corral with second-degree robbery (§ 211; count 1) and carrying a concealed dirk or dagger (§ 21310; count 2), both alleged to have occurred on August 15, 2019. As to count one, the information alleged Corral personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). As to count two, the information alleged Corral was armed with a deadly weapon (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)).
All references to dates are to dates in 2022 unless otherwise stated.
The information alleged multiple aggravating factors under rule 4.421. The information further alleged Corral had suffered three prior serious felony convictions (§§ 667, subds. (b)- (i), 1170.12, subds. (a)-(d)): (1) a May 5, 2000, conviction under section 245, subdivision (a)(1); (2) a May 14, 2004, conviction under section 215, subdivision (a); and (3) a May 14, 2004, conviction under section 211. The 2004 felonies were alleged as a single enhancement under section 667, subdivision (a). Finally, the information alleged Corral had served two prior prison terms (§ 667.5, subd. (b)).
On September 8, the trial court denied Corral's motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). On September 9, the court heard and denied Corral's motion to suppress evidence under section 1538.5, finding there was probable cause to search, and, in addition, it was a legal parole search. The court also heard and denied Corral's motion to suppress his show-up identification by the victim, S.Y., finding it was not suggestive.
On September 12, Corral pleaded no contest under People v. West (1970) 3 Cal.3d 595 to both counts and admitted the deadly weapon enhancement as to each count. He further admitted all three strike priors and both enhancements under section 667, subdivision (a). Corral admitted factors in aggravation, and the court indicated its intention to impose a prison sentence of 22 years, four months. The plea was entered over the prosecutor's objection, but the prosecutor successfully moved to dismiss the section 667.5, subdivision (b) allegations "in light of the plea."
On September 29, Corral filed motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, inviting the court to strike the serious felonies under section 1385.
On October 11, at the outset of the sentencing Corral stated: "If there's no way to withdraw the plea, then I have to take the sentencing today." Defense counsel, along with another lawyer, explained to Corral that the reasons he wanted to withdraw his plea were "basically all evidentiary and procedural reasons that should be addressed on appeal, not by motion to withdraw. So what I explained to him was what good cause entails and that this is not good cause to withdraw the plea. Rather, the correct vehicle to address his issues is through appeal."[
A guilty plea waives any right to raise questions regarding the evidence, including its sufficiency or admissibility, and the fairness of a pretrial lineup. (People v. Turner (1985) 171 Cal.App.3d 116, 127; People v. Stearns (1973) 35 Cal.App.3d 304, 306.) The denial of a Marsden motion also cannot be raised on appeal unless a defendant asserts that the plea was not informed and voluntary or was the product of inappropriate advice from counsel. (People v. Lobaugh (1987) 188 Cal.App.3d 780, 786; accord People v. Lovings (2004) 118 Cal.App.4th 1305, 1311-1312.)
Thus, the trial court proceeded to sentencing, and over the prosecutor's objections, the court granted Corral's request to strike his two 2004 strike priors. The court sentenced Corral to the indicated sentence of 22 years, four months, comprised as follows: The upper term of five years for count one, doubled to ten years due to the remaining strike prior, enhanced by five years for each of the section 667, subdivision (a) priors, and one year under section 12022, subdivision (b)(1). For count two, the court imposed an unstayed consecutive term of eight months, doubled to one year, four months.
Corral was awarded time credits amounting to 1,244 days, consisting of 1,082 days actual time served and 162 days of conduct credits. The court ordered Corral to pay a $3,000 restitution fine (§ 1202.4), with the same amount suspended pending completion of parole. The court further ordered Corral to pay a $40 court operations assessment (§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373) as to count one but declined to order these fees as to count two. Victim restitution remained open.
On October 12, Corral filed a timely notice of appeal.
The statement of facts is taken from the transcript of the preliminary hearing held on September 3, 2019, and a taped interview with the victim, S.Y.
On August 15, 2019, at approximately 8:45 p.m., Fresno Police Department officers were dispatched to a drugstore on Brawley Avenue in Fresno, regarding an armed robbery. Upon arrival, officers contacted S.Y. S.Y. said she was working at the cash register. S.Y. was assisting a customer when a man, later identified as Corral, walked in trying to get cigarettes. When she was done helping the customer, Corral asked S.Y. for a pack of cigarettes. S.Y. asked Corral for his identification. Corral handed S.Y. what appeared to be a high school identification. S.Y. returned the identification and told Corral she could not help him.
At that time, Corral pulled a nine-inch-long chef's knife with a long black handle from underneath his pants. Corral waived the knife at S.Y. and threatened her life. Corral said, "you wouldn't want to lose your life over some money, would you?" S.Y. opened the register and Corral took all the cash. Corral said the cash was not enough and told S.Y. to give him Marlboro cigarettes. S.Y. grabbed "20 plus" packs of cigarettes and bagged them for Corral. He put away his knife, took a few candy bars, told S.Y. to have a good night, and left. S.Y. notified the store manager, who called the police. The police arrived roughly 15 minutes later.
S.Y. described Corral as a Hispanic male, 20-30 years old, with a light beard, wearing a dark tank top, green pants, and a red bandana. S.Y. said she would be willing and able to identify Corral if she saw him again.
Officer Devonnel Austin then brought S.Y. to where Corral had been detained. When Corral was presented to S.Y., he was handcuffed. She identified Corral as the person who robbed her at knife point. Property found in Corral's drugstore bag were 34 packs of Marlboro cigarettes, dark chocolate Kit Kats, and cash.
APPELLATE COURT REVIEW
Corral'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 Corral was advised he could file his own brief with this court. By letter on April 7, 2023, we invited Corral to submit additional briefing.
In response to our invitation, Corral filed a supplemental letter brief on May 4, 2023, which we have read and considered. However, he presents no issues that would warrant relief on appeal.
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 Corral.
DISPOSITION
The judgment is affirmed.
[*] Before Franson, Acting P. J., Meehan, J. and Snauffer, J.