Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Wade Olson, Judge. Los Angeles County Super. Ct. No.KA074678.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KLEIN, P. J.
Michael Anthony Holguin (Holguin) appeals the judgment entered following his plea of no contest to eight counts of attempted murder (Pen. Code, §§ 664/187, subd. (a)), three of which were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and during three of which he personally discharged a firearm (§ 12022.53, subd. (c)). Pursuant to a negotiated plea agreement, the trial court sentenced Holguin to 63 years, eight months in prison. We dismiss Holguin’s appeal as inoperative for failure to obtain a certificate of probable cause.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
The evidence at the July 20, 2006, preliminary hearing established that at approximately 10:30 p.m. on February 28, 2006, Ricardo Meza (Ricardo) and six male friends, including his brother German Meza (German), were socializing in front of a house located at 123 Banbridge in La Puente. Four of Meza’s friends were seated in a car parked in front of the house, while Ricardo, German and a third man, Edmond Gale (Gale), were standing outside near the sidewalk.
A white car with three occupants, two in the front seat and one in the back, pulled up and stopped in front of the house. Holguin, who was seated in the front passenger seat of the car, asked if Ricardo and his friends were from a gang or “banged.” When Ricardo replied that he “didn’t bang,” Holguin got out of the white car. The man seated in the rear passenger seat handed Holguin a “.22 rifle with a banana clip” and told him to “ ‘shoot up, shoot up.’ ” Holguin grabbed the rifle, aimed it at Ricardo’s friends seated in the parked car and fired several rounds. The first rounds hit the car’s windshield, shattering the glass. As Holguin continued to fire shots at the car’s occupants, the driver put the car into reverse and backed up a nearby hill onto a small secluded street. In the meantime, Ricardo, German and Gale had run into the house. Holguin got back into the white car and he and his companions drove off.
Once inside the house, Ricardo, German and Gale met with Gary Flores (Flores). Flores, who had been in the back of the house when he heard gunshots, had come into the living room to investigate. After Ricardo told him about the shooting, Flores, followed by Ricardo, German and Gale, went outside in front of the house to “check it out.”
As they walked out toward the sidewalk, the white car, swerving as it turned, again pulled up to the house and stopped. Flores heard someone inside the car say, “ ‘get him,’ ” then saw the .22 caliber rifle. As soon as he saw the gun, Flores turned and began to run toward the house. Flores heard multiple shots and felt bullets “whizzing” by him. When he was approximately half way to the front door, Flores realized he had been “hit” with a bullet. While Holguin continued to fire at them, Ricardo and the others pulled Flores inside the house.
Once inside, it was determined Flores had been shot in the back. The bullet had exited through his chest, causing his lung to collapse.
Los Angeles Deputy Sheriff Steven Kays testified he knew Holguin personally and was of the opinion Holguin is a member of the criminal street gang called “Blackwood.” Kays had previously arrested Holguin and knew Holguin had “a tattoo of Blackwood spelled out on his chest” and lived with two documented Blackwood gang members.
Kays believed the February 28th shooting had been done for the benefit of a criminal street gang. The shooting occurred in enemy gang territory, an area claimed by the “Barrio Puente” or “Eastside Puente” gang. Kays was of the opinion Holguin and his companions had committed the shooting to “promote their reputation and street prowess [and to show] that they ha[d] no problem[] with shooting” at a “large group of males” in rival gang territory. Holguin and his companions were out to “make a name” for themselves and their gang.
According to Kays, one need not be a member of a rival gang to be attacked by gang members. Kays stated that innocent people, such as Ricardo and his companions, who were simply in the wrong place at the wrong time, “have been targeted by gang members.”
2. Procedural History.
On August 3, 2006, Holguin was charged by information with eight counts of willful, deliberate, premeditated attempted murder (§ 664/187, subd. (a)), each of which was committed for the benefit of and the intent to promote a criminal street gang (§ 186.22, subd. (b)(1)(A)), and during the commission of each of which he personally and intentionally used and discharged a firearm causing great bodily injury (§ 12022.53, subd. (b), (c) & (d)). It was further alleged Holguin previously had served a prison term for a felony conviction within the meaning of section 667.5, subdivision (b).
At proceedings held on December 11, 2006, the trial court indicated Holguin had agreed to a negotiated plea bargain under the terms of which the People would strike the “willful, deliberate, premeditated portion [of the allegations on the] attempted murder counts” and the trial court would impose 20 years in prison rather than 25 years to life for Holguin’s discharge of a firearm during the offenses. In addition, rather than imposing a life sentence for the allegation the attempted murders were committed for the benefit and promotion of a street gang, the court would impose a “10 year gang enhancement.” In total, Holguin would be sentenced to a term of 63 years, eight months in prison.
After waiving his right to a jury or court trial, his right to confront and cross-examine the witnesses against him, his right to present a defense and his privilege against self incrimination, Holguin pleaded no contest to attempted murder (§ 664/187, subd. (a)) as alleged in counts one, two and three of the information, admitted the crimes were committed for the benefit and promotion of a criminal street gang (§ 186.22, subd. (b)(1)) and admitted that during the offenses he personally discharged a firearm (§ 12022.53, subd. (c)). With regard to counts four through eight, Holguin pleaded no contest to the allegations he had committed attempted murder (§§ 664/187, subd. (a)).
At the same December 11th proceedings, the trial court sentenced Holguin to the upper term of nine years for his conviction of attempted murder as alleged in count one. For his discharge of a firearm during the commission of the offense, the court imposed a 20-year enhancement. For the “special gang allegation,” the trial court imposed a consecutive term of 10 years in prison, for a total term of 39 years in prison as to count one.
For the attempted murders alleged in counts two and three, the trial court imposed as to each count consecutive terms of one-third the middle term, or two years and four months, consecutive terms of one-third the middle term, or three years and four months for the gang allegations, and consecutive terms of six years and eight months for the findings Holguin discharged a firearm. For counts two and three, the trial court imposed a total of 24 years, eight months in prison, the term to run consecutively to the 39 years imposed for Holguin’s conviction of count one.
With regard to the remaining counts alleging attempted murder, counts four through eight, the trial court selected the middle term of seven years in prison as to each count and ran the terms concurrently to each other and the sentence imposed for count one. The trial court dismissed all remaining allegations. In total, Holguin was sentenced to the negotiated term of 63 years, eight months in prison.
The trial court awarded Holguin precommitment custody credit for 246 days actually served and 37 days of good time/work time, or a total of 283 days.
In view of the injury suffered by Flores and the damage inflicted on the car, the trial court stated it was “retain[ing] jurisdiction over the restitution issue.” It then directed Holguin to pay a $200 restitution fine pursuant to section 1202.4, a suspended $200 parole revocation restitution fine pursuant to section 1202.45, and a $20 court security fee pursuant to section 1465.8, subdivision (a)(1).
Holguin filed a timely notice of appeal on February 9, 2007.
This court appointed counsel to represent Holguin on appeal on May 7, 2007.
CONTENTIONS
After examining the record, Holguin’s counsel sought correction of the abstract of judgment in the trial court with regard to the number of presentence custody credits awarded to Holguin. Then, on June 27, 2007, Holguin’s counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed June 27, 2007, the clerk of this court advised Holguin to submit within 30 days any contention, ground of appeal, or argument he wished this court to consider. In response, on July 5, 2007, Holguin filed a letter in which he asserted he was “forced” into entering pleas of no contest to the charged offenses.
DISCUSSION
1. Holguin’s contentions fail to demonstrate reversible error.
Holguin indicates he believed the public defender who was representing him prior to the December 11, 2006, proceedings was incompetent and unresponsive to his wishes. In particular, he asserts the public defender was responsible for the prosecutor’s denial of a plea agreement under the terms of which Holguin would have been sentenced to 38 years in prison. Instead, the public defender encouraged Holguin to settle for a “life” term, a term Holguin had hoped to avoid.
Due to his discontent with the public defender assigned to him, Holguin states he retained counsel to represent him beginning with the proceedings held on December 11, 2006. Holguin urges his retained counsel was willing to take the matter to trial or to renegotiate the terms of the plea agreement. However, the trial court would not grant retained counsel a continuance. Accordingly, Holguin, believing he had no other reasonable choice, agreed to the bargain previously negotiated by the public defender and, although he believed he was being “forced into taking [the] plea bargain,” entered pleas of no contest to the charges in exchange for a sentence of 63 years, eight months in prison. From his supplemental brief, it appears Holguin is now requesting that he be allowed to withdraw his plea and either go to trial on the matter or resume negotiations for a plea agreement under the terms of which he would be sentenced to only 38 years in prison.
Holguin’s contentions are not supported by the record. The transcript of the plea and sentencing proceedings held on December 11, 2006, indicates Holguin was represented at those proceedings by a public defender. The transcript reveals no discussion of a continuance or other potential plea agreements. Instead, the transcript, as well as the written “Felony Advisement of Rights, Waiver, and Plea Form,” indicates Holguin knowingly, intelligently and voluntarily entered his plea in exchange for a sentence of 63 years, eight months in prison.
2. Holguin failed to obtain a certificate of probable cause.
When a defendant enters a plea of guilty or no contest, he may not bring an appeal unless he “has sought, and the trial court has issued, a certificate of probable cause ‘showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.’ ” (People v. Emery (2006) 140 Cal.App.4th 560, 562; see § 1237.5.)
Here, Holguin’s contention he was “forced” to plead no contest in exchange for a 63-year, eight-month sentence goes to the validity of the plea itself and, as such, is not cognizable on appeal absent a certificate of probable cause. (See, e.g., People v. Shelton (2006) 37 Cal.4th 759, 766 [“ ‘[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself’ and thus requires a certificate of probable cause.”].)
Moreover, even if we were to consider Holguin’s contention, it would be without merit. There is no evidence in the record of coercion. Accordingly, by accepting the negotiated sentence of 63 years, eight months in exchange for dismissal of numerous alleged charges, Holguin waived any claim imposition of the sentence was improper. (People v. Shelton, supra; 37 Cal.4th 759,767; People v. Buttram (2003) 30 Cal.4th 773, 783.)
REVIEW ON APPEAL
We have examined the entire record and are satisfied Holguin’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.) Because Holguin pleaded no contest and failed to obtain a certificate of probable cause, the appeal must be dismissed. (In re Chavez (2003) 30 Cal.4th 643, 651; People v. Mendez (1999) 19 Cal.4th 1084, 1093-1099; § 1237.5.)
DISPOSITION
The appeal is dismissed.
We concur: CROSKEY, J., KITCHING, J.