Opinion
F080412
06-09-2021
THE PEOPLE, Plaintiff and Respondent, v. AUSTIN ESTEVES, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR060534. Dale J. Blea, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
Appellant and defendant Austin Esteves pleaded guilty to two felonies and was sentenced to the indicated term of two years eight months in prison. On appeal, his appellate counsel has filed a brief that 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 (Wende).) We affirm.
The facts are from the police report, as summarized in the probation report.
On October 31, 2017, at approximately 6:11 a.m., Chowchilla Police Officer Magallanes was dispatched to a residence regarding a stolen vehicle. Upon arrival, the officer contacted the reporting party, Niccole Cox, who was also the owner of the vehicle, and took her statement. Ms. Cox stated she arrived at the residence with her children; she was driving a red Honda Pilot. Ms. Cox got out of her car and opened the gate for the children to go inside. As she walked back to her car, she realized the Honda was moving forward. Ms. Cox stated she yelled, “ ‘Stop,' ” and the Honda turned around. Defendant, who had been driving the Honda, got out of the car with a bat and started yelling about money. Ms. Cox said the situation escalated and defendant got back into her car and drove away from the area.
Ms. Cox reported defendant returned in a white Ford Taurus and started fighting with everybody. Ms. Cox said that as defendant drove away in the Ford, he attempted to hit Juan Olivera with the vehicle. Defendant almost hit her children when he drove away. She later found her vehicle around the corner from the residence.
Officer Magallanes also interviewed Mr. Olivera, who stated he was in the backyard when the incident occurred. Mr. Olivera said defendant drove away in the red Honda but returned. Defendant was holding a bat when he got out of the car, and he was yelling. Mr. Olivera said defendant left in the red Honda and returned in a white Taurus. He tried to get defendant to leave. Mr. Olivera was standing behind the white car, and defendant put the vehicle in reverse and tried to hit him twice. Mr. Olivera said he was able to dodge the car. Mr. Olivera said defendant tried to hit him a third time, and this time he fell and hit his hand on the ground. Mr. Olivera said he wanted to press charges against defendant for hitting him with the car and requested medical treatment for his hand.
Officer Magallanes searched the area for defendant but could not find him at that time.
PROCEDURAL BACKGROUND
The charges and plea
On May 4, 2018, a felony complaint was filed in the Superior Court of Madera County that charged defendant with count 1, assault with a deadly weapon, a car (Pen. Code, § 245, subd. (a)(1)), and count 2, unlawfully taking or driving a vehicle, Ms. Cox's Honda (Veh. Code, § 10851, subd. (a)).
All further statutory citations are to the Penal Code unless otherwise indicated.
On July 10, 2019, the court granted the prosecution's motion to amend count 1 to allege assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). Thereafter, defendant pleaded guilty to the amended count 1, and also to count 2 as charged, for an indicated term of two years eight months in prison.
Motion to withdraw plea
On August 27, 2019, defendant filed a motion to withdraw his plea pursuant to section 1018 based on newly discovered evidence. He claimed Ms. Cox made additional statements to the defense investigator that absolved him of any criminal conduct, and she was willing to testify in support of his motion. The People indicated they would orally oppose the motion.
On September 12, 2019, the court appointed counsel to represent Ms. Cox and scheduled a hearing on defendant's motion. On September 30, 2019, the court issued a body attachment for Ms. Cox because she failed to appear for the hearing as ordered.
Hearing testimony
On October 7, 2019, the court held a hearing on defendant's motion to withdraw his plea. The parties stipulated the court could consider the police report in lieu of live testimony from the responding officer, who was unavailable because of an injury.
Ms. Cox testified that on October 31, 2017, she went to a friend's house with her children. She got into an argument with defendant, and it “spiraled out of hand, ” but she could not remember what it was about. Ms. Cox testified defendant had her permission to get into her Honda and move it, and the car stayed on the property. Defendant had permission to drive her cars “before that and after that.”
Ms. Cox testified she saw Mr. Olivera swing a baseball bat at defendant, and she did not see defendant hit anyone with a car. When Mr. Olivera “came down with the bat, [defendant] was leaving and [Mr. Olivera's] hand got hit with the car.”
Ms. Cox admitted that she told defendant to “stop” when he was driving her car, and her car was later found in an alley around the corner from the house, as stated in the police report.
Ms. Cox testified defendant was her friend, she did not want to press charges against him, but her husband wanted to because he jointly owned the car with her. Ms. Cox admitted that defendant had been in trouble for driving her car on previous occasions.
The court's denial of the motion
The court stated it reviewed the police report and determined Ms. Cox's testimony was inconsistent with her prior statements because she contacted the police and reported her car had been stolen. “That was the whole reason law enforcement appeared on the scene.” The court noted also inconsistencies in her statements:
“That [defendant] is the one who exited the vehicle with a bat and was yelling about money and that he's the one who struck the other individual, Juan Olivera. Also, the officer contacted Mr. Olivera and his statement is in the report as well, and Mr. Olivera's statements to law enforcement on the date of the incident are more consistent with [Ms. Cox's] statement to law enforcement on October 3, 2017 than they were today.
“Frankly to be honest with you, I don't believe the witness's testimony. It's entirely inconsistent with what she told law enforcement. It's inconsistent with what Mr. Olivera told law enforcement, and based on that, I don't find that [defendant] has established by clear and convincing evidence that he should be permitted to withdraw his plea.”
Sentencing
After denying the motion, the court conducted the sentencing hearing and imposed the indicated term of two years eight months in prison, based on the lower term of two years for count 1, plus eight months (one-third the midterm) for count 2. The court found the indicated term was appropriate based on defendant's history of two felony convictions, two misdemeanor convictions, and two probation violations, and he was on probation at the time of this offense.
When the court addressed the fines and fees recommended in the probation report, defense counsel presented a statement of defendant's assets and asked the court to reconsider the fines and fees. The court did so, and imposed a $300 restitution fine (§ 1202.4, subd. (b)), suspended the $300 parole revocation fine (§ 1202.45), and victim restitution subject to proof, and stated it would not impose the $964 fine or the $750 presentence report fees previously recommended.
Appellant motions
On November 22, 2019, defendant filed a notice of appeal in pro. per., but checked the box indicating that he was filing an appeal from the denial of a section 1538.5 motion to suppress. His request for a certificate of probable cause was denied.
On March 5, 2020, appellate counsel filed an application with this court to request a certificate of probable cause from the trial court to cure errors in the notice of appeal filed in pro. per. On April 17, 2020, this court denied appellate counsel's application.
On April 21, 2020, appellate counsel requested this court construe the notice of appeal to be from matters arising after the plea. The People did not oppose the motion. On June 1, 2020, this court granted the motion.
According to appellate counsel, a postjudgment motion was filed in the trial court, pursuant to section 1237.1, requesting correction of the presentence credit calculation to include five additional days, for a total of 301 days. Appellate counsel states that on October 21, 2020, the court granted the motion.
DISCUSSION
As noted above, defendant's counsel has filed a Wende brief with this court. The brief also includes the declaration of appellate counsel indicating that defendant was advised he could file his own brief with this court. By letter on October 23, 2020, we invited defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed. [*] Before Franson, Acting P.J., Meehan, J. and De Santos, J.