Opinion
E070065
07-30-2018
THE PEOPLE, Plaintiff and Respondent, v. LUIS FELIPE DIAZ, JR., Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1703033) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On September 11, 2017, an information charged defendant and appellant Luis Felipe Diaz, Jr., with infliction of corporal injury (Pen. Code, § 273.5, subd. (a); count 1); criminal threats (§ 422; count 2); dissuading a witness (§ 136.1, subd. (b); count 3); and damage to a wireless communication device, a misdemeanor (§591.6, count 4). Pursuant to section 667.5, subdivision (b), the information alleged that defendant served three prior prison terms, and that defendant had a prior serous felony conviction (§ 667, subd. (a)). Furthermore, the information alleged strikes pursuant to section 667, subdivisions (c), (e), and section 1170.12. Defendant entered not guilty pleas and denied the prior allegations.
All further statutory references are to the Penal Code unless otherwise indicated.
On August 27, 2017, a protective order was issued pursuant to section 136.2. On December 5, 2017, that order was terminated and a new protective order was issued pursuant to section 136.2.
On December 13, 2017, the trial court filed a letter from defendant "express[ing] [his] innocence" and stating that he never threatened or inflicted a traumatic injury on the victim.
Defendant filed a section 995 motion to set aside count 2 on November 20, 2017, which the prosecution opposed. The trial court denied the motion on December 20, 2017.
Pursuant to a plea agreement, defendant executed a felony plea form on January 3, 2018, and agreed to a maximum sentence of 10 years. He waived his constitutional rights and pled guilty to counts 2 and 3, and admitted one strike. The parties stipulated that the preliminary hearing transcript provided a factual basis for the pleas. Counts 1 and 4, and the remaining priors were dismissed. The December 5, 2017, protective order was terminated. Pursuant to the plea agreement, the court sentenced defendant to 10 years in prison: six years for count 2 (upper term doubled) and four years for count 3 (midterm doubled), to run consecutively; fines and fees were imposed.
On February 26, 2018, defendant filed a timely notice of appeal.
The factual history is taken from the reporter's transcript of the preliminary hearing. --------
The victim testified that she lived in Corona with defendant, with whom she had been involved in a romantic relationship for approximately two years. In July 2017 the victim and defendant were in their apartment arguing about defendant's work as a bouncer at a strip club. They were standing face to face. The victim spit in defendant's face, defendant kicked her in the leg and she "punched" him in the face; she started screaming and defendant put his hand over her mouth. The victim bit his finger and defendant slapped her three times on the left side of her head and cheek. Afterwards, she had bruises on her face, a mark on her neck, and an abrasion on her foot. She called the police but hung up.
On the evening of August 8, 2017, she and defendant again argued about him working at a strip club and about a GPS tracking device, which defendant had placed in her car because he was "jealous." She told him she had given the GPS to the police. The victim was laying on her bed in her room and defendant was close by. As they argued, she became afraid and started screaming. Defendant put a pillow on her face, applying pressure to her nose and mouth area for about 20-30 seconds. The victim turned her head so she could breathe. When the pillow was removed, the victim felt light-headed. Defendant pulled her off the bed by her ankle on to the floor and she landed on her back.
The victim's phone was on the floor. As she was attempting to unlock the phone to call the police, defendant took it away from her. The victim crawled to the corner of the room and had a panic attack. Defendant tried to help her breathe and got her some water. He told the victim, "we're forever. And we need to work it out." Defendant said that she could not be with anyone else and if she tried, "he would hurt them . . . he would kill them" and "feed them" to her. Defendant gave her phone back to her the next morning. The victim testified defendant was taking steroids "for working out." The victim thought this might have led defendant to have anger issues.
On August 11, 2017, defendant came to the victim's place of employment looking for the GPS tracking device. She gave it to him but they continued to argue, which caused the victim's coworkers to come out of the building. Defendant yelled at them. The coworkers called police.
After the incident, defendant sent the victim text messages saying that he was sorry and that they were going to work it out. At the time, the victim did not want to talk to defendant and responded, "Don't want shit from you." Defendant replied, "Well, still gonna be by force. WE are a couple. I'm gonna kill any dude." He later texted, "I will never raise a hand anymore," and "I won't hit you anymore. Let's just love."
On August 11, 2017, City of Santa Ana Police officer Sean Slane interviewed the victim at the Santa Ana Police Department. The victim told Slane that after she was pulled off the bed she attempted to crawl to the door. As she did so, defendant told her that she was not going anywhere and that if she called the police, "he was going to kill her." Defendant also told her if she dated anyone else, he would "kill them and feed them to her."
Officer Slane saw several small abrasions near the victim's right elbow and left forearm, and bruising. The victim complained of pain in her left ankle, jaw and forearms. The victim told Officer Slane that she felt defendant was capable of killing her.
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.
DISPOSITION
The judgment is affirmed.
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.