Opinion
H036946
02-17-2012
THE PEOPLE, Plaintiff and Respondent, v. ALEXIZ HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS090745)
Pursuant to a negotiated disposition, Alexiz Hernandez (defendant) pleaded no contest to one count of second degree robbery (Pen. Code, § 211, count six) and one count of taking a vehicle without the owner's consent (Veil. Code, § 10851, subd. (a), count five). Defendant admitted that he used a firearm in the commission of the robbery (§ 12022.5) and that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd.(b)(1)). In exchange for his no contest pleas and admissions defendant was promised a 23 year prison term (top/bottom).
All unspecified section references are to the Penal Code.
On May 11, 2011, the court sentenced defendant per the terms of the negotiated disposition.
Defendant filed a notice of appeal on May 13, 2011, challenging the validity of the plea. Defendant sought a certificate of probable cause, which the trial court denied.
Subsequently, defendant filed a petition for writ of mandate in this court requesting that this court order the superior court to issue a certificate of probable cause. We denied defendant's petition on September 16, 2011. The California Supreme Court denied review of that decision in case number S196646 on October 26, 2011.
We have taken judicial notice of the record in case number H037063.
Defendant's counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel has suggested two issues to guide our review. First, the superior court acted in excess of jurisdiction when it denied defendant's request for a certificate of probable cause. Second, the superior court abused its discretion in denying defendant's motion to withdraw his plea.
On October 27, 2011, we notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant has filed a letter brief in which he asserts that he received ineffective assistance of counsel because his trial counsel misadvised him on the amount of time he would have to serve on his 23 year negotiated sentence.
Pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, we have reviewed the entire record and have concluded there are no arguable issues on appeal, including the two issues that counsel raised to guide our review. 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 aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.) We will consider defendant's letter brief pursuant to People v. Kelly, supra 40 Cal.4th 106, and we will explain why we have rejected his contention. (Id. at p. 113.)
Facts and Procedural History
The facts are taken from the probation officer's report.
On December 8, 2008, at about 5:45 p.m. two men armed with guns robbed the Super Maxx market in Salinas. Each man wore a black hooded sweatshirt and had a bandana over his face. About 30 minutes later, an officer responded to a report of a suspicious vehicle being driven on Orange Drive at a high rate of speed. He interviewed a witness who told him that a two-tone gray Jeep Cherokee stopped and cash drawers were tossed from the vehicle. The officer found two cash drawers and two bandanas in the road.
On January 10, 2009, at approximately 8:40 p.m., a Nob Hill store in Salinas was robbed by two men wearing bandanas. A witness saw one of the men without a bandana over his face. One of the robbers had a gun, while the other (later identified as a codefendant) removed cash drawers from the registers and put them into a pillow case. The cash drawers were found on January 13, 2009, on Villa Street near West Market Street by a passerby.
On February 6, 2009, Salinas police officers were dispatched to a residence on a report of a carjacking. The victim told the officers that someone pointed a gun in her face and demanded the keys to her vehicle. She gave the person her keys and he got into her 2004 dark blue four door Dodge Neon. The victim provided a description of the male suspect to the officer, but could not provide any details regarding his facial features because he was wearing a hooded sweatshirt.
On February 9, 2009, at approximately 9:58 a.m., a Del Rey Oaks police officer pulled into the parking lot of a Safeway store on Canyon Del Rey Road. He saw three people running out from the north exit of the store. The three people were wearing bandanas covering their faces and all three got into a blue 2004 Dodge Neon that was parked. The officer followed the Dodge as it left the parking lot. The Dodge travelled at a high rate of speed and made a sharp left turn onto Canyon Street. The officer pursued the Dodge until it stopped on Portola Drive. The three people that had been inside got out of the Dodge and ran toward 870 Portola Drive; all three jumped the back fence of the property and ran toward the Del Rey Golf Range. They ran through Del Rey Creek and began scaling a large steep hillside that lead to Ralston Drive. The three people refused to stop when the officer "yelled, 'police.' "
Two of the three people made it to the top of the hillside, but after an officer fired a warning shot approximately 40 yards from one of the people, a codefendant was taken into custody. Later, Monterey police officers took defendant into custody.
A search of the Dodge Neon revealed a black backpack that contained money stolen from the Wells Fargo Bank located inside the Safeway store and a cell phone that was stolen from one of the tellers in the bank. The money totaled $1543 with an additional $190 in quarters.
On February 10, 2009, officers located a gray Jeep Cherokee in front of 870 Portola Drive. The Jeep was registered to defendant's mother. The Jeep matched the description of the vehicle that was seen stopped with cash drawers being thrown out of the window shortly after the robbery at the Super Maxx store.
Before transporting defendant and the codefendant to Monterey County jail, officers placed a tape recorder and digital voice recorder in the back of a patrol car. On the recording defendant and the codefendant talked about how much time they thought they would have to serve for the "offense."
Later, the gun used in the Wells Fargo Bank robbery was found. It was reported stolen from Arizona. DNA samples taken from two codefendants matched DNA taken from evidence collected in the Wells Fargo Bank robbery. A witness from the Nob Hill store robbery was able to positively identify one of the codefendants as the person that held the pillow case with the cash register drawers.
In a search of defendant's home, officers found gang paraphernalia, letters from inmates convicted of gang crimes, cocaine and photographs of Norteños gang members.
By way of a second criminal complaint the Monterey County District Attorney charged defendant with four counts of robbery in connection with the Wells Fargo Bank incident (counts one through four—four different victims), one count of taking a vehicle without the owner's consent (count five) and five counts of robbery in connection with the Nob Hill store incident (counts six through 10—five different victims). As to all counts, it was alleged that the offenses were carried out for the benefit of a criminal street gang (§ 186.22), that defendant personally used a firearm during the Nob Hill robbery (§ 12022.5), and was out on bail when he took the Dodge Neon.
Before entering his pleas, defendant executed a "WAIVER OF RIGHTS PLEA OF GUILTY/NO CONTEST" form in which he was advised of his constitutional rights, and the immigration consequences of his plea. Before taking defendant's plea, the court confirmed with defendant that he understood the rights he would be giving up by entering his pleas. Defendant stated that he understood and gave up those rights. The court outlined the plea agreement telling defendant that the court would impose a sentence of 23 years and make a restitution order. Defendant confirmed that he understood. Counsel stipulated to a factual basis for the pleas contained in the police reports. The court found that defendant had made a knowing and intelligent waiver of his constitutional rights and that there was a factual basis for the pleas.
After defendant entered his pleas, defense counsel Mary Conn asked the court for clarification on the credits that defendant would get for the time he served in county jail on this case. Ms. Conn told the court that defendant had served time in the county before making bail on another case. Specifically, she said, "just for clarification, especially for [the] family, Mr. Hernandez will get -- will be credited with all time he served in the county jail pending this and other -- pending this case, and the time he also was given. He served some time in the county prior to making bail on another case, and would give him credit for the time that's applicable on this case." The court stated that it believed that to be correct and said that defendant would be entitled to get a certain amount of conduct credits, but the court was "not totally clear how many." The prosecutor responded that defendant's conduct credits would be limited to 15 percent. The prosecutor went on to say, "I guess we can have the probation department address -- he was in custody on the [burglary charge] for a certain period of time, and since he's now pleading to that, I'm not sure what actually -- it is not clear to me that he's legally entitled to credits on that." Ms. Conn asked, "should we amend the plea to reflect that count or that charge, rather than the --." However, the prosecutor pointed out that would mean that defendant would then stand convicted of two strikes. The court told defense counsel that she did not "want that to happen." Ms. Conn concurred.
It appears that defendant was charged in case number SS072658A with burglary, but the case was dismissed "with all facts to be considered on December 15, 2010."
Thereafter, on December 15, 2010, at the start of what was supposed to be defendant's sentencing hearing, defendant told the court that he wanted to withdraw his plea. Defendant explained that he thought that he was "going to get half-time I was promised half-time, and I don't know what I was signing for. And I read the reports. That's not what I signed for." The court replied that there was "no point getting into this at this point. People have an opportunity to respond. Something has to be filed in writing if you want to do that." The court put the matter over until February 2, 2011, to hear defendant's motion to withdraw his plea.
On February 2, 2011, defendant appeared with defense counsel Ms. Conn; Ms. Conn declared a conflict. The court appointed the Alternate Defender's Office to represent defendant.
Subsequently, new counsel Romano Clark filed a motion to withdraw defendant's plea. Defendant claimed that his plea was involuntary due to ineffective assistance of counsel in that trial counsel erroneously advised him that he would receive half-time credits and credit for time served on the other case when he was not in custody on this case. Defendant maintained that he entered his plea on the assurance that he would be released after 12 years, which he asserted was important because then he would be released before his infant child grew up. He said that if he had known he was not eligible for the credits Ms. Conn had told him he was entitled to, he would not have entered his plea.
At the hearing on defendant's motion, Mr. Clark attempted to have an exhibit marked for the court. He represented that it was something he found in Ms. Conn's file. It was dated December 13, two days before the original sentencing hearing. Mr. Clark told the court that Ms. Conn disagreed with defendant's declaration regarding the award of custody credits and he found the document "particularly probative" as it was dated two days before the sentencing hearing. Mr. Clark continued to explain that it was "very probative of whether or not counsel in fact misrepresented to Mr. Hernandez exactly what his exposure would be and what the credits would be as accrued." The prosecutor objected to the exhibit being presented as it was "not sworn testimony." The prosecutor asked the court not to consider the exhibit. The court denied defendant's motion to withdraw his plea without explanation. The court put the matter over briefly for sentencing.
Defendant brought a motion in this court to augment the record with the exhibit. We granted the motion on November 16, 2011. The exhibit appears to be an email exchange between Ms. Conn and a Rick Lennon that reads as follows: "On the conduct credits issue, both the robbery and the gun use make it a violent felony, limiting conduct credits both pre-sentence, and in state prison to 15%." However, authentication of a writing is required before it may be received in evidence. (Evid. Code, § 1401.) Mr. Clark presented no evidence of its authenticity.
On May 11, 2011, the court sentenced defendant per the terms of the negotiated disposition to 23 years in state prison consisting of the midterm on the robbery count (§ 213, subd. (a)(B)(2)), plus 10 years for the gang enhancement (§ 186.22 (b)(1)(c) and the upper term of 10 years for the gun enhancement (§ 12022.5, subd. (a)). The court awarded defendant custody credits consisting of 822 actual days and 123 days of conduct credits for a total of 945 days credit for time served. The court imposed various fines and fees, including a restitution fund fine of "$200 for each year of incarceration pursuant to 1202.4 (b)."
The minute order from the sentencing hearing records the restitution fund fine as "$200 multiplied by the number of years of imprisonment, multiplied by the number of convicted Felony counts." This would result in a fine of $9,200. However, the abstract of judgment indicates a restitution fund fine of only $4,600, which reflects the oral pronouncement of judgment.
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Discussion
As to the first issue that counsel suggested to assist the court in conducting our independent review, we may not review the denial of a certificate of probable cause on appeal. An order denying an application for a certificate of probable cause is not an appealable order and may be reviewed only by a petition for writ of mandate. (See People v. Castelan (1995) 32 Cal.App.4th 1185, 1187-1188; People v. Holland (1978) 23 Cal.3d 77, 84, fn. 6, overruled on other grounds in People v. Mendez (1999) 19 Cal.4th 1084, 1097, fn. 7, 1098; see also People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.) Further, this court has already denied defendant's petition for writ of mandate and the California Supreme Court has denied review of that decision.
As to the second issue that defendant suggested to guide our review, we note that "[a] defendant must obtain a certificate of probable cause in order to appeal from the denial of a motion to withdraw a guilty plea, even though such a motion involves a proceeding that occurs after the guilty plea. [Citation.]" (People v. Johnson (2009) 47 Cal.4th 668, 679; In re Chavez (2003) 30 Cal.4th 643, 651.) More importantly, a motion to withdraw a guilty or no contest plea must be supported by a showing of good cause. (§ 1018; People v. Cruz (1974) 12 Cal.3d 562, 566 (Cruz).) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence. [Citations.]" (Cruz, supra, 12 Cal.3d at p. 566.) Defendant's showing fell far short of such clear and convincing evidence.
Defendant's Contention
As to defendant's contention that he was misadvised by his counsel as to the amount of time he would have to serve on his 23 year sentence and thus he received ineffective assistance of counsel, defendant's claim raises factual questions outside the record on appeal. It is better to raise this claim by writ of habeas corpus. (People v. Salcido (2008) 44 Cal.4th 93, 172.)
In conclusion, our review of the record satisfies this court that defendant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.) The sentence imposed was supported by the law and the facts and was consistent with the plea bargain. The fines and fees and the custody credits awarded are supported by the law.
Disposition
The judgment is affirmed.
ELIA, J. WE CONCUR: PREMO, Acting P. J. MIHARA, J.