Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF224004, Joseph Kalashian, Judge.
Paul E. Lacy, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Dawson, Acting P.J., Kane, J., and Poochigian, J.
PROCEEDINGS
Appellant, Gabriel Angel Perez, was charged in an information filed August 3, 2009, with felony assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), count one) and misdemeanor resisting arrest (§ 148, subd. (a)(1), count two). The complaint alleged a great bodily injury enhancement (§ 12022.7, subd. (a)).
Unless otherwise designated, all further statutory references are to the Penal Code.
On September 10, 2009, appellant entered into a plea agreement in which he would admit the allegations, including the great bodily injury enhancement. Under the agreement, appellant would receive probation with a maximum prison term of seven years if he violated the conditions of probation. The trial court advised appellant of the consequences of his plea and explained his constitutional rights pursuant to Boykin/Tahl. The court found a factual basis for the plea based on the preliminary hearing transcript. Appellant pled no contest to both counts and admitted the great bodily injury enhancement.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
On October 8, 2009, the trial court placed appellant on probation. On December 31, 2009, appellant filed a motion to withdraw his plea. Appellant declared that he was not advised by his attorney that he was admitting a prior serious felony under the three strikes law.
On January 29, 2010, the court held a hearing on appellant’s motion to withdraw his plea. Appellant was represented by retained counsel, not the public defender who originally represented him. Appellant told the court he thought he was pleading guilty to resisting arrest. Appellant was represented by Neil Pedowitz at the preliminary hearing. Pedowitz testified that he spoke to appellant regarding his case between three and six times. Pedowitz discussed with appellant that the allegation in count one was a felony and a serious felony within the meaning of the three strikes law. Pedowitz also discussed the issue of victim restitution because the victim had been shot with a BB near the eye and there were emergency room expenses. The court did not find appellant’s representations credible and denied his motion to withdraw his plea.
Under section 1018, a defendant has up until six months after being placed on probation to bring a motion to withdraw a guilty plea.
At the conclusion of a hearing on victim restitution on March 2, 2010, the court ordered that appellant pay Claudia Garcia the amount of $640 plus $1,208 and Adolfo Mendoza $360. Appellant filed a timely notice of appeal that included a certificate of probable cause.
FACTS
At 9:00 p.m. on July 2, 2009, Marco Gutierrez was outside his apartment with his neighbor, Adolfo Mendoza, and Mendoza’s son. Appellant came out of his apartment screaming, apparently upset that someone would be outside his home. Gutierrez was standing outside the door to his apartment saying goodbye to Mendoza and his son, and asked appellant to give him a minute so he could get some water. When Gutierrez went inside to get water, he heard shots and the sound of a bullet passing by. Gutierrez heard three shots. Mendoza told Gutierrez to stay inside. Gutierrez asked Mendoza to come into his apartment.
Adolfo Mendoza testified he was outside his home at 9:00 p.m. on July 2, 2009, with his son and his neighbor, Marco Gutierrez. When Gutierrez went inside his apartment to get a drink, Mendoza heard a sound whizzing past his face. When it happened a second time, Mendoza noticed that his son was injured.
The sound was coming from a lighted parking lot. Mendoza saw appellant in the parking lot area hiding behind a fence. Mendoza asked Gutierrez not come outside because appellant was firing at them. Mendoza then asked Gutierrez’s wife to call the police. Mendoza’s son was struck near his eyebrow and went to the hospital for treatment for his injuries. Arresting officers found a.22-caliber pellet rifle in appellant’s apartment.
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on January 4, 2011, we invited appellant to submit additional briefing.
Appellant replied with a letter complaining about his trial counsel, denying the felony allegations against him, and complaining about his appellate counsel for filing a Wende brief and seeking substitution of his appellate attorney. On February 2, 2011, we issued an order explaining that the filing of a Wende brief does not, in itself, constitute grounds to remove appellate counsel.
The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
To show error in the trial court’s denial of appellant’s motion to withdraw his plea, appellant must show that he would not have entered his plea absent the inadequate representation of his original attorney. The trial court found that appellant’s original trial counsel adequately represented appellant. There is substantial evidence in the record to support the trial court’s finding. Appellant has failed to make any showing that either his trial or appellate attorney performed below professional standards.
Appellant further denies that he committed felony assault or caused great bodily injury. A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636, overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343; People v. Chadd (1981) 28 Cal.3d 739, 748.) A plea of nolo contendere (or no contest) is legally equivalent to a guilty plea and also constitutes an admission of every element of the offense pled. (People v. Warburton (1970) 7 Cal.App.3d 815, 820-821.) We reject appellant’s assertion of innocence.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.