Opinion
A128819
02-14-2012
THE PEOPLE, Plaintiff and Respondent, v. MILTON ELICEO MENDEZ et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR556234)
Pursuant to a negotiated disposition, defendant/appellant Milton Eliceo Mendez (Mendez) pled no contest to attempted murder (Pen. Code, §§ 187, subd. (a), 664)(count 1) and admitted a criminal street gang enhancement (§ 186.22, subd. (b)(1)(C)).Mendez's sole contention on appeal is that his incriminating statements were elicited by the police in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We conclude Mendez's appeal raises a noncognizable issue, and therefore must be dismissed.
All undesignated section references are to the Penal Code.
Two other counts of attempted murder (counts 2 & 3), three counts of assault with a firearm (§ 245, subd. (a)(2)) (counts 4, 5 & 6), one count of active participation in a criminal street gang (§ 186.22, subd. (a)) (count 7), and one count of discharging a firearm at an occupied motor vehicle (§ 246) (count 8) were dismissed. Gang enhancements attached to counts 2 through 6 and 8 were dismissed. Firearm use allegations attached to counts 1 through 3 were dismissed.
Pursuant to a negotiated disposition, codefendant/appellant Gabriel Caballero-Ramos (Caballero-Ramos) pled no contest to attempted murder (count 1) and admitted firearm arm use (§ 12022.5, subd. (a)) and criminal street gang enhancements. His counsel has advised that examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436 (Wende).) Counsel informed Caballero-Ramos in writing that a Wende brief was being filed and that he had the right to personally file a supplemental brief in this case within 30 days. No supplemental brief has been filed. Caballero-Ramos fails to raise any arguable issues and, therefore, the judgment against him is affirmed.
BACKGROUND
The background facts are taken from the preliminary hearing transcript.
On the evening of December 20, 2008, Matthew Menning and his two young sons drove to a FoodMaxx to purchase some groceries. As they exited the parking lot, a car driven by Mendez pulled up next to Menning's car; its three occupants, including Caballero-Ramos, were screaming expletives at Menning and his sons and "throwing up" gang signs. Caballero-Ramos was holding a gun. As Menning sped away, the occupants of defendants' car fired shots at Menning's car. A bullet passed through the back window of Menning's car and an unoccupied child's car seat.
Santa Rosa Police Detective Eric Swift viewed the video surveillance tape from the FoodMaxx, which depicted a physical fight involving defendants and others. Mendez appeared to act as a lookout while Caballero-Ramos and Lopez fought a suspected rival Norteño gang member. The video also showed defendants' car following Menning's car out of the FoodMaxx parking lot.
When questioned by police, Caballero-Ramos admitted that he and Mendez followed Menning's car because they believed it was occupied by Norteños and that Mendez was the driver. Caballero-Ramos also admitted that a gun was fired at Menning's car from defendants' car; he did not identify the shooter. Mendez admitted driving defendants' car and chasing and ramming Menning's car. He also admitted that someone inside his car fired a gun at Menning's car.
At the May 2009 preliminary hearing, Mendez argued that his statements to police should be excluded because they were obtained while he was in custody and without being informed of his Miranda rights. The court denied Mendez's motion to exclude his statements and held defendants to answer.
In July 2009, Mendez unsuccessfully moved to set aside the information (§ 995), again arguing that his incriminating statements were obtained in violation of Miranda. At the outset of trial, Mendez unsuccessfully renewed his motion to exclude his statements to police obtained in violation of Miranda.
On January 21, 2010, Mendez executed a waiver of rights form and entered a no contest plea to the attempted murder charge and admitted the criminal gang enhancement. Pursuant to the negotiated disposition, it was understood the remaining counts and enhancement allegations would be dismissed and Mendez would be sentenced to 19 years in state prison. Mendez was sentenced in conformity with his negotiated disposition. The court awarded him 555 days of credit for time served pursuant to section 2933.1 and imposed the requisite fees, fines and restitution.
On the same day, Caballero-Ramos executed a waiver of rights form and entered a no contest plea to the attempted murder charge and admitted the firearm use and criminal street gang enhancements. Pursuant to the negotiated disposition, it was understood the remaining counts and enhancement allegations would be dismissed and it was stipulated that Caballero-Ramos would be sentenced to 22 years in state prison. Caballero-Ramos also understood that due to his commission of a violent felony, he was entitled to a maximum of 15 percent conduct credits. At the sentencing hearing, the court noted that Caballero-Ramos had numerous sustained juvenile petitions and his performance on two terms of juvenile probation was considered unsuccessful. The court awarded Caballero-Ramos 488 days of actual custody credit and 73 days of conduct credit pursuant to section 2933.1. The court imposed on defendants, jointly and severally, a $115.50 restitution fine payable to the Victim Compensation Board. The court also imposed on Caballero-Ramos a $4,800 restitution fine (§ 1202.4), a $4,800 parole revocation fine, suspended unless parole is revoked (§ 1202.45), and a $30 court security fee. The court also required Caballero-Ramos to register with the chief of police or county sheriff (§ 186.30) and to provide blood and saliva samples (§ 296).
With the exception of the firearm use allegation admitted by Caballero-Ramos, the dismissed counts and allegations were the same as those dismissed against Mendez.
Caballero-Ramos's sentence was computed as follows: The aggravated nine-year term for the attempted murder charge, 10 years for the gang enhancement, and a mitigated three-year term on the firearm use enhancement.
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On June 30, 2010, Mendez filed his notice of appeal and the court granted his request for a certificate of probable cause, sought in part on the Miranda issue.
DISCUSSION
I. Mendez's Claim Is Not Cognizable On Appeal
Mendez's sole contention on appeal is the court erroneously refused to exclude his incriminating statements to the police, which he contends were elicited by police in violation of Miranda. We first address the People's contention that Mendez's appeal must be dismissed because he pled no contest and, therefore, cannot challenge the denial of his Miranda motion.
Despite the issuance of a certificate of probable cause, the denial of a defendant's Miranda motion to exclude his or her incriminating extrajudicial statements is not reviewable on appeal following a plea of guilty or no contest. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896 (DeVaughn); People v. Bonwit (1985) 173 Cal.App.3d 828, 833.) However, a claim that a plea was improperly induced challenges the legality of the proceedings resulting in the plea and is cognizable on appeal under section 1237.5. (DeVaughn, at p. 896.) If the defendant's plea was induced by misrepresentations that Miranda issues would be preserved on appeal, the defendant must be permitted to withdraw his plea. (DeVaughn, at p. 896.) Here, the record does not establish any such misrepresentations were made.
In his reply brief, Mendez argues his Miranda claim implicates his Fifth Amendment rights under the United States Constitution and "necessarily and implicitly seeks withdrawal of his plea on the ground that it was illegally induced by an improper evidentiary ruling that implicated his constitutional rights under the Fifth Amendment." Thus, he asks us to "deem that sufficient to render his Fifth Amendment issue sufficiently stated for adjudication on appeal." Alternatively, he requests that we construe his argument as seeking withdrawal of his plea on the ground that it was improperly induced by the violation of his Fifth Amendment rights, which was not corrected in the adjudication of his Miranda motion. Mendez's failure to cite any supporting legal authority constitutes a forfeiture of these arguments on appeal. (People v. Watkins (2009) 170 Cal.App.4th 1403, 1410.)
Because Mendez's sole claim is not cognizable on appeal, his appeal must be dismissed. II. Caballero-Ramos's Wende Appeal
In response to Caballero-Ramos's Wende brief, we have independently reviewed the record. Caballero-Ramos was adequately represented by counsel and there are no potentially meritorious issues.
DISPOSITION
Mendez's appeal is dismissed. The judgment against Caballero-Ramos is affirmed.
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SIMONS, J.
We concur.
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JONES, P.J.
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BRUINIERS, J.