Opinion
H036521
08-15-2011
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW MORENO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC952932)
Following a negotiated disposition in Santa Clara County Superior Court case No. CC952932, Matthew Moreno (defendant) appeals from his conviction of one count of attempted murder (Pen. Code, §§ 664/187) and one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).
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 declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende/Anders was being requested.
On April 12, 2011, we notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant filed a supplemental letter brief in which, in essence, he asserts that the court violated the plea bargain in this case because his attorney had offered him a deal in this case of 12 years eight months; that the court erred in refusing to allow him to withdraw his plea; that he received ineffective assistance of counsel because trial counsel misled him into accepting a plea bargain; and that the court erred in not appointing new counsel to investigate whether he received ineffective assistance of counsel in entering his plea. Finally, he asserts that he has evidence to prove his innocence and wishes to withdraw his plea.
Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues. 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 contentions. (Id. at p. 113.)
Facts
The facts are taken from the probation officer's report in this case.
On April 6, 2008, the victim in this case was stabbed in the parking lot of the 7-Eleven at the corner of "King Road and Flanigan Avenue" in San Jose. Witness accounts and video surveillance footage showed that the victim was "assaulted by several suspects after exciting the 7-Eleven store." Three males approached the victim and one suspect, Timothy Casarez, believed to be a Nortenõ gang member, lifted his shirt, showed the victim a tattoo "and asked the victim where he was from." Casarez, Jose Martinez and defendant, also known Nortenõ gang members, attacked the victim. Defendant stabbed the victim several times with a knife. At one point the victim was able to run away; a fourth suspect ran out of the store and began chasing the victim along with Casarez, Martinez and defendant. The assault resumed. Sometime later, defendant and the others returned to the parking lot of the 7-Eleven and got into their respective vehicles. Defendant was seen to have blood on his hands when he entered his vehicle; he fled the scene.
The victim had 10 stab wounds to his back, a punctured lung, a two inch laceration under his left eye, a half-inch laceration on the left side of his forehead, a two and one-half inch laceration above the right eye, a half-inch laceration to the left outer forearm, and a half-inch laceration to the top of his left hand.
Defendant was charged by information, filed by the Santa Clara County District Attorney's Office, with one count of attempted murder (Pen. Code, § 664/187, count one) and one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). As to count one, the information contained an allegation that the attempted murder of the victim was willful, deliberate and premeditated. As to both counts, the information alleged that defendant had inflicted great bodily injury on the victim within the meaning of Penal Code section 12022.7, subdivision (a), and had personally used a deadly or dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1). Further, the information contained an allegation that defendant committed both offenses for the benefit of, at the direction of, and in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)); and had suffered a prior strike conviction within the meaning of Penal Code section 667, subdivisions (b)-(i)/1170.12; and that the prior conviction was a serious felony within the meaning of Penal Code section 667, subdivision (a).
Defendant entered a plea of not guilty to the charges on May 10, 2010.
Subsequently, on November 9, 2010, pursuant to a plea agreement, defendant changed his plea to no contest to the attempted murder charge and admitted the personal infliction of great bodily injury allegation, the personal use of a deadly and dangerous weapon allegation, the gang allegation, and that he had suffered a prior strike conviction within the meaning of Penal Code sections 667, subdivisions (b)-(i) and 1170.12. The court took under submission the People's motion to dismiss count two, to strike the serious felony allegation and to strike the premeditation and deliberation allegation attached to count one.
Before taking defendant's plea and admissions, the court outlined the plea agreement in this case as follows:
"The Court: It's my understanding there is a proposed disposition in this matter, and I want to outline my understanding of it, and I want to make sure that everyone is in agreement. [¶] And most importantly that, Mr. Moreno, that you understand things. [¶] This involves conclusion of this case in conjunction with four other cases that have already come to closure, and when I say come to closure that sentencing has not been accomplished in all of them as yet but pleas and in some cases sentencings have already occurred. All the matters are going to be put on calendar for the sentencing date that's going to be forthcoming, and I'm going to state all the Information numbers for the record. Besides the current Information there's CC805539, CC646684, CC950544. As a result of the disposition in the current case, the current case because of the sentence to be imposed will become the princip[al] term. That is going to require re-sentencing on Information ending in 684 which was commonly identified for us as the probation violation. Mr. Moreno has already been sentenced to a 16 year term on that case; re-sentencing because that case is now going to become a subordinate case is going to be adjusted to five years and four months which results in a net reduction of ten years and eight months as to that Information. [¶] Do you understand that, Mr. Moreno?
We have taken judicial notice of this court's unpublished opinion with regard to case Nos. CC805539 and CC646684. We affirmed defendant's conviction on Wende review in both cases in H035454. CC805539 was another attempted murder case.
"The Defendant: Yes, Your Honor.
"The Court: The case currently before the Court is going to result in an additional term of 23 years as I'm going to outline in a moment. Do you understand that?
"The Defendant: Yes.
"The Court: The terms for the other three Informations are going to remain the same as either sentences already been imposed or pleas having been entered and sentences remaining. Do you understand that?
"The Defendant: Yes.
"The Court: As a result let's talk about the case before the Court today. It's my understanding that you are going to be offering pleas of guilty or no contest as follows: Count 1, the charge of attempted murder. The premeditation and deliberation allegation is going to be submitted for dismissal. You will be admitting the great bodily injury allegation, 12022.7(a); the weapon allegation 12022(b)(1); and the 186.22(b)(1)([C]) gang allegation. Count 2 with the special allegations will be submitted for dismissal. The serious felony allegation, 667(a) is going to be submitted for dismissal pursuant to 1385 based on the constraints of Penal Code Section 1170.1(a). Sentence will be - - oh, and also there is one strike in the Information which will be admitted and that's pursuant to 667(b) through (i) and 1170.2. [¶] The sentencing disposition is as follows: For Count 1 with the strike you will be sentenced to . . . the lower term doubled to ten years. There will be a three year consecutive term for the great bodily injury allegation. There will be a ten year consecutive term for the gang allegation. The punishment for the weapon allegation will be stricken pursuant to 1385. The total term to be impose[d] for the record that Information therefore is 23 years. It will be the princip[al] determinate term. It will run consecutive to the indeterminate term imposed in the other case ending 539 [the other attempted murder case]."
After confirming with the prosecutor and defendant's counsel that he had correctly stated the sentencing disposition for this case and all five cases, both of whom said that he had, the court asked the defendant if he understood both the charging and sentencing disposition for this case and the "overall sentencing disposition for the five cases[.]" Defendant confirmed that he did.
Thereafter, the court asked defendant if he had had any problems talking to defense counsel about his case. Defendant said, "No." Defendant confirmed that he had had enough time to discuss with his attorney the charges, the possible defenses and all the consequences of his decision to enter a guilty plea. Defendant confirmed that he was satisfied with his counsel's advice. Defense counsel confirmed that he had had a sufficient opportunity to discuss the case with defendant and had explained to defendant all his constitutional rights and the consequences of his plea and admissions; defense counsel stated that he was satisfied that defendant understood his situation.
Subsequently, the court advised defendant of his trial rights, specifically, of his privilege against self-incrimination, his right to confront his accusers and his right to trial by jury as required by Boykin v. Alabama (1969) 395 U.S. 238, and In re Tahl (1969) 1 Cal.3d 122. Defendant said that he understood and then freely and voluntarily waived those rights. Further, the court advised defendant that he had a right to testify as well as subpoena witnesses. Defendant stated that he understood and gave up those rights. The court told defendant that his maximum prison commitment without a plea bargain was 30 years to life and that when released from prison he was subject to a five year parole period. The court advised defendant of the possible immigration consequences of his plea; and that there were other consequences of his plea, including that he would have to pay direct victim restitution, a restitution fund fine of up to $10,000, as well as some fees; and that because he was pleading to a strike and a serious felony that if he were to be convicted in the future of any felony he would be subject to a 25 years to life term. Defendant confirmed that he understood. The court reiterated that the sentence for this case would be 23 years and asked defendant if he understood. Defendant said, "Yes." Counsel stipulated to a factual basis for the pleas and admissions based on the police reports attached to the information.
Defense counsel confirmed that he had discussed with defendant the actual immigration consequences of his plea.
As noted, defendant entered a no contest plea to count one and admitted the allegations in the information with the exception of the serious felony allegation.
On January 11, 2011, at the sentencing hearing on this case, defense counsel told the court that defendant "would like to address the Court." The court told defendant to "[g]o ahead." Defendant told the court that he "would like to pull [his] plea of no contest and go to trial." Defendant gave the following explanation to the court: "I understand that during our pre-sentencing hearing we talked about a 23 year princip[al] term I believe. And in my mind the whole time it was I was going to get straight 12 years 4 months for the attempted murder case. At no time during the whole time did I hear anything about the V.O.P. being 10 years taken off of 16 and reduced to five. And I would like to go to trial, because I'll be getting 62 years is what I'm looking at to life, to receive . . . life for such same attempted murder crime and I'm not guilty of this new attempted murder. The only reason I took this plea was because I had two people who were going to come and lie on the stand or one who took a 17 year deal for her little testimony. Now I know that there the evidence alone is a video recorder that the picture is grainy you can't tell who it is except for the initial suspects who took the deal of 15 and 17 years. And I would like to take my plea back and go to trial."
Since defendant was being sentenced or resentenced on all his cases we have no way of knowing if he was talking about this case or the other attempted murder case in which he was convicted—CC805539—when he stated that he thought he was getting 12 years four months for the attempted murder case.
Defense counsel clarified for the court that defendant was asking to withdraw his plea in this case.
The court asked defense counsel if there was any legal basis not to go forward with sentencing. Counsel stated that there was not. The court asked the prosecutor if he wished to add anything. The prosecutor replied that the "record speaks for itself in terms of the voir dire that occurred in regard to the plea." Accordingly, the court continued with sentencing as per the terms of the negotiated sentencing dispositions involving all five cases.
For case CC805539 the sentence as originally imposed remained—14 years to life consecutive to six years. For case CC952932 the sentence was set at 23 years to run consecutive to the sentence in CC805539, as per the terms of the plea bargain. This was designated the principal term. In case CC806814, a robbery case, the sentence as originally imposed remained—seven years to run consecutive to all the other cases. For case CC950544, defendant received one third the midterm doubled for the strike on each of five counts for a total term of 7 years and four months. Finally, in case CC646684, the probation violation case, the court vacated the original sentence of 16 years and resentenced defendant to five years and four months in prison to be served consecutive to all the other cases. Defendant's total prison term is 42 years eight months consecutive to 14 years to life consecutive to six years.
Defendant's Contentions
As to defendant's contention that the court violated the plea agreement, the record does not support defendant's position. We find no mention of a 12 year eight month term for this case. Further, while defense counsel may well have tried for that term during plea negotiations it is quite apparent that he was unsuccessful in obtaining that disposition.
As to defendant's contention that he tried to vacate the plea and the court erred in not allowing him so to do, a plea may be withdrawn if the defendant establishes good cause for withdrawal by clear and convincing evidence. (Pen. Code, § 1018; People v. Huricks (1995) 32 Cal.App.4th 1201, 1207 (Huricks).)We review a denial of a motion to withdraw the plea for abuse of discretion. (Huricks, supra, at p. 1208.) Good cause is established upon a showing "that [the] defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment." (Ibid.)There is simply no evidence that defendant's plea was not an exercise of his free judgment. Defendant's plea agreement included a detailed advisement by the court regarding the disposition in all five cases in which defendant was involved and defendant stated that he understood each and every disposition. Accordingly, it was not an abuse of discretion by the trial court to implicitly deny defendant's motion when there was no good cause to withdraw the plea.
As to defendant's contention that he received ineffective assistance of counsel in that his counsel misled him "into agreeing to a deal," this claim cannot be resolved on the present record. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [an appellate court should not find ineffective assistance of counsel unless all facts relevant to that claim have been developed in the record].)
As to defendant's contention that the trial court erred in not appointing substitute counsel, no request for substitute counsel appears in the record. Although no formal motion is necessary to seek substitution of counsel, there must be at least some clear indication by defendant that he wanted a substitute attorney. (People v. Mendoza (2000) 24 Cal.4th 130, 157.)
Finally, as to defendant's contention that he has evidence to prove his innocence and wants a trial, even if this court treated defendant's letter as a petition for writ of habeas corpus, "[w]e are entitled to and we do require of a convicted defendant that he allege with particularity the facts upon which he would have a final judgment overturned . . . . " (In re Swain (1949) 34 Cal.2d 300, 304.) Defendant has failed to meet this requirement.
Defendant's actual innocence claim is properly brought in a habeas corpus petition. A collateral attack on a criminal judgment may be brought on habeas corpus on the basis of newly discovered evidence if such evidence casts fundamental doubt on the accuracy and reliability of the proceedings. (In re Lawley (2008) 42 Cal.4th 1231, 1239.) Nevertheless, actual innocence habeas claims are subject to a high standard of proof. This is because for purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence. Thus, a defendant must undertake the burden of overturning them. (Id. at p. 1240.) Defendant has failed to meet his burden.
Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. The penalties imposed were supported by the law and facts. At all times appellant was represented by competent counsel.
Disposition
The judgment is affirmed.
ELLA, J. WE CONCUR:
RUSHING, P. J.
PREMO, J.