Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-533046
Richman, J.
Counsel appointed for defendant Miguel Ruiz has asked this court to independently examine the record in accordance with People v. Wende (1979), 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, but did not do so. We have conducted our review and conclude there are no arguable issues. We therefore affirm.
BACKGROUND
Our examination of the record revealed the following: On the afternoon of March 27, 2008, Gerardo Torres and his cousin, Fritzen Reyes, went into a market in Windsor to purchase a drink. As they left the store, they were confronted by three individuals who were subsequently identified as defendant, Gabriel Torres, and Juan Garcia. Defendant demanded to know if victim Torres “banged” or was a “rat” and why he was wearing a blue belt. Without responding, victim Torres began to walk away. According to Reyes, assailant Torres approached victim Torres from behind and made two punching motions to his lower back. Defendant kicked him, and all three assailants then fled. Reyes had not seen any weapons, but after the three suspects fled, he noticed that victim Torres was bleeding from a cut on his lower back.
Because defendant pleaded no contest prior to trial, we derive these facts from the March 3, 2009 presentence report and the transcripts of the preliminary hearing.
There is no suggestion in the record that Gerardo Torres and Gabriel Torres were related, and we assume that they were not. To avoid confusion, we will refer to them as victim Torres and assailant Torres.
Victim Torres’s account varied somewhat. He reported to the police that when he and his cousin exited the market, defendant and assailant Torres were waiting for them. Defendant said something to him in English, but since he did not understand English, he walked away. Assailant Torres suddenly hit him in the back of his head with a closed first, and defendant took a knife out of his pocket and stabbed him in the back. After he fell to the ground, both assailants proceeded to kick him, and all three men then fled. He was later taken to the hospital for treatment.
Based on descriptions provided by Reyes and victim Torres and surveillance video from the market, the police apprehended defendant and his companions later that same day. At a live line-up, Reyes identified assailant Torres as the individual he saw making the punching motions to victim Torres’s back, and defendant as the individual who asked victim Torres if he was a rat and kicked him during the assault. Victim Torres, however, identified defendant as the assailant who stabbed him, and assailant Torres as the individual who punched him in the back of his head.
During a police interview, defendant denied having ever been at the market that day. When confronted with the surveillance video, he continued to deny it, stating that he was not a “rat.” The police interviewed Garcia separately, and while he admitted to having been at the market, he claimed that he had not heard the exchange between his friends and victim Torres, and was unaware victim Torres had been stabbed. When defendant and Garcia were placed together in an interview room, defendant commented to Garcia, “Why couldn’t I have just punched him.”
Assailant Torres was also interviewed, but he immediately invoked his Miranda rights.
During a February 24, 2009 interview with a probation officer, defendant admitted that he was in fact the one who stabbed victim Torres.
By an amended felony complaint, defendant was charged with assault with a deadly weapon (count I; Pen. Code, § 245, subd. (a)(1) ) and participation in a criminal street gang (count II; § 186.22, subd. (a)). As to the assault charge, the amended complaint alleged that it was a serious felony in that defendant personally used a deadly weapon (§ 1192.7, subd. (c)(23)); that it was committed in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)); and that defendant personally inflicted great bodily injury upon victim Torres (§ 12022.7, subd. (a)). Following a four-day preliminary hearing, the district attorney filed an information asserting the same allegations.
All statutory references are to the Penal Code.
Both the amended complaint and information alleged charges against defendant’s co-participants as well. However, as this appeal was brought only on behalf of defendant, we omit details concerning the allegations against his co defendants.
On October 17, 2008, defendant pleaded not guilty to the charges and denied the allegations.
On November 24, 2008, defendant moved pursuant to section 1538.5 to suppress all evidence recovered from the car in which he was riding at the time he was apprehended. Defendant also moved pursuant to section 995 to dismiss count I’s gang enhancement and count II, on the theory that there was insufficient evidence to support holding him over on all gang-related allegations. On January 5, 2009, the court granted defendant’s motion to dismiss, concluding that the prosecution failed to introduce sufficient evidence on the gang issues.
On January 22, 2009, in an open plea, defendant withdrew his not guilty plea and pleaded no contest to the remaining charge of assault with a deadly weapon and admitted that he personally inflicted great bodily injury on victim Torres. The matter was referred to the probation department for preparation of a presentence report.
The resulting March 3, 2009 report detailed the incident resulting in the assault charge, as well as defendant’s significant criminal history, which included both juvenile and adult offenses. It also noted that in light of defendant’s use of a deadly weapon and the infliction of great bodily injury, defendant was presumptively ineligible for probation. Because this presumption can be overcome if the court deems it an unusual case (California Rules of Court, rule 4.413(b)), the report discussed “criteria affecting probation” as follows: “Favorable Factors: The defendant ultimately completed juvenile probation successfully. He expresses a willingness to comply with the terms of probation, and might have some ability to do so based upon his level of education, health, family and local ties, stated intent to participate in treatment and acceptance by treatment programs, and employable skills. Imprisonment and a felony record would likely be detrimental to the defendant and his dependent children. Mr. Ruiz expresses some remorse for his behavior. Unfavorable Factors: The defendant used a deadly weapon and inflicted great bodily injury on the victim. The victim was particularly vulnerable as he was struck in the head and stabbed from behind, and was also outnumbered during the assault. The defendant has numerous prior Juvenile Court adjudications and convictions as an adult, including two adjudications for violent conduct. His performance on juvenile probation initially was poor. His ability to comply with the terms of probation might be hampered by ongoing substance abuse, gang association, and other factors. Based upon the facts of this case and his earlier violent conduct, the defendant is considered a danger to the community if not imprisoned.”
As for circumstances in aggravation pursuant to California Rules of Court, rule 4.421, the report cited the victim’s particular vulnerability, defendant’s participation in violent conduct which indicates he is a danger to society, the fact that defendant was on three grants of conditional sentence when he committed the crime, and his initial unsatisfactory performance on juvenile probation. There were no circumstances in mitigation noted, other than defendant’s ultimate success on juvenile probation.
Based on the foregoing, the probation department recommended that probation be denied and defendant be sentenced to state prison for seven years, consisting of the aggravated term of four years on the assault charge and a consecutive three-year term on the great bodily injury enhancement.
On March 16, 2009, defendant filed a statement in mitigation and request for probation. Urging that the court grant probation, the statement noted that defendant had no “recent” record of similar crimes, no history of violence “as an adult,” and no history of felony crimes. It also pointed to defendant’s history of substance abuse, his successful completion of juvenile probation, the negative impact a prison term would have on his family, and his remorse. As to factors in mitigation, the statement identified defendant’s alcohol addiction, his successful performance on juvenile probation, and his good character.
On March 25, 2009, consistent with the probation department’s recommendation, the court denied probation and sentenced defendant to the upper term of four years on the assault charge plus a consecutive three-year term on the great bodily injury enhancement, for a total of seven years in state prison. The court also imposed a restitution fine of $1,400 pursuant to section 1202.4, subdivision (a)(3)(b); a restitution fine of $1,400 pursuant to section 1202.45, suspended unless parole is later revoked; restitution of $816.19 and as directed, for which defendant was jointly and severally liable with his co-defendants; and a $20 court security fee. Defendant was awarded 396 credits for time served, comprised of 345 actual days plus 51 credits for good conduct.
Defendant filed a timely notice of appeal.
DISCUSSION
The scope of reviewable issues on appeal after a guilty plea is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977), 18 Cal.3d 889, 895-896.)
Defendant’s change of plea complied with Boykin v. Alabama (1969), 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.
Defendant was represented by competent counsel who guarded his rights and interests.
The trial court did not abuse its discretion in denying probation and imposing the upper term on the assault charge or a consecutive term on the great bodily injury enhancement.
The sentence imposed is authorized by law.
DISPOSITION
Our independent review having found no arguable issues that require briefing, the judgment of conviction is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.