Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA354685 John S. Fisher, Judge.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KLEIN, P. J.
Brandon J. Sandoval appeals from the judgment entered following his plea of no contest to four counts of second degree robbery (Pen. Code, § 211), during one of which he personally used a firearm (§ 12022.53, subd. (b)), and one count of making criminal threats (§ 422) during which he personally used a firearm (§ 12022.5, subd. (a)); and his admission that he committed the crimes “for the benefit of, at the direction of, or in association with [a] criminal street gang, with the specific intent to promote, further, or assist in... criminal conduct by gang members....” (§ 186.22, subd. (b)(1).) The trial court sentenced Sandoval to 20 years in state prison. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
1. Facts.
At approximately 8:45 p.m. on January 6, 2009, Antoine Phillip Coelho De Silva was walking on New Hampshire Street from 6th Street toward the corner of 5th Street. As he approached the intersection, he realized that three men were waiting for him there. The three men, one of whom was Sandoval, surrounded De Silva and, while pointing a knife at De Silva, Sandoval asked him for money. Sandoval took De Silva’s wallet from his front pocket, took $40 out, then gave the wallet back to De Silva. One of the other two men took De Silva’s IPOD and his keys from his back pocket. The man gave De Silva’s keys back to him, but kept the IPOD. The three men then walked up 5th Street, toward the west side of Normandie.
At approximately 8:30 in the evening on January 11, 2009, Richard Kim and his girlfriend, Laurie Lo, were walking out of a sushi restaurant on Berendo Street, between 6th Street and Wilshire Boulevard. As they walked toward Kim’s car, Kim noticed that “three or four young Hispanic males [were] hovering around” it. However, when the young men saw Kim and Lo approaching the vehicle, they left the immediate area. Kim thought the men had just been admiring the car, a 2008 BMW.
Kim disengaged the alarm and opened the door on the passenger side to let Lo get in. As he walked around to the driver’s side of the car, Kim looked up to see the three or four men rushing back toward him. As Kim moved back around toward the passenger side to let Lo out of the car, one of the men, Sandoval, opened the driver’s side door and started to get into the car. Before Kim could get to the passenger side, another young man grabbed him by the shirt. When Kim began to fight with the young man, Sandoval got out of the car, pulled a small caliber chrome gun from his pocket and calmly showed it to Kim as he shook his head. It appeared to Kim that Sandoval was telling him to stop resisting. Kim stopped struggling as the man who had grabbed him by the shirt went through his pockets. Kim watched as a third young man rifled through Lo’s purse and another man went through Kim’s glove compartment. The men took Kim’s wallet, cell phone and car keys and Lo’s cell phone.
As if on cue, the group left the area, running toward Wilshire Boulevard. Kim chased after them, “hoping that [he] could flag down a cop car along the way.” However before Kim saw a police officer, the men were picked up by a car on Wilshire Boulevard and driven away.
On January 11, 2009 at approximately 8:30 p.m., Jorge Mecinas and his wife were in Mecinas’s car on Berendo Street between 6th and Wilshire waiting for a parking space. “[A] car stopped, and three guys got” out. The three men, one of whom was Sandoval, crossed the street in front of Mecinas and stopped on the sidewalk. An Asian couple “showed up” and, as they walked toward their car, the three men “went towards the young man and the young lady.” Two of the men approached the Asian man and one of the men “went for the girl.” Mecinas “lifted up [his] cell phone and... dialed 911.” However, the young men apparently realized that Mecinas was making a call and two of the three men “came towards [him].” The third man remained with the Asian couple.
The two men, one of whom was Sandoval, “started to beat up on [Mecinas’s car’s] window.” Sandoval, who was on the driver’s side of the car, told Mecinas that if he did not roll down the window, open the door and give him the phone, “he[, Sandoval, ] was going [to] kill [Mecinas]” and his girlfriend. Sandoval then began beating on the side of the car with a gun, breaking the side, rear view mirror. When Mecinas looked over toward the passenger side of the car, it appeared that the man standing there also had a gun. Mecinas was frightened. However, when the man who had stayed with the Asian couple apparently “finished robbing them, ” the three men “all took off running.”
At 12:30 a.m. on January 20, 2009, Sewan Kim was on San Marino Street, near Westmoreland when two men, one of whom was Sandoval, approached him on bicycles. When they reached Kim, Sandoval and his companion got off of their bicycles and asked Kim if he had any money. When Kim told them that he had none, Sandoval repeatedly said, “ ‘Money.’ ” Kim told the two men that he did not have any money and, while he was paying attention to Sandoval’s companion, Sandoval moved behind Kim, pulled out a knife and held it up against the right side of Kim’s neck. Kim “felt like [he] was in danger, so [he] just complied, [when Sandoval’s companion] emptied [his] pockets.” After they had taken Kim’s phone and wallet, Sandoval and the second man got back on their bicycles and rode off.
On January 25, 2009, Los Angeles School Police Officer Frank Gamboa translated from Spanish to English an interview with Juan Chilene. Chilene had been walking on Oakwood, near the intersection of Alexandria, “when three guys got [out of] their vehicle about mid block, approached him [and] asked him for his property[.]” Chilene was frightened when he saw that at least one of the men was armed with a handgun. In addition, the men were threatening him. After taking Chilene’s property, the three men got back into their car and drove east on Oakwood.
After admonishing Chilene, Gamboa took him to the site of a field showup. There, Chilene identified all three men who had been involved in the robbery. Sandoval was one of the three men.
It was stipulated that “the special allegation pertaining to each... count alleged in [the] complaint..., that [the] crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members[, ] was met in all respects; namely, that the gang in question in this case, MS-13, or Mara Salva Trucha, is a criminal street gang and that all of the elements of the [section] 186.22[, ] [subdivision] (b) [allegation] were met as to each... crime set forth in the complaint....”
2. Procedural history.
In an information filed on June 22, 2009, Sandoval was charged with five counts of second degree robbery (§ 211), during three of which he personally and a principal used a firearm (§ 12022.53, subds. (b) & (e)(1)) and during three of which a principal was armed with a firearm or other deadly or dangerous weapon (§ 12022, subds. (a)(1) & (b)(1)). In addition, Sandoval was charged with two counts of attempted robbery (§§ 664/211), during each of which he personally and a principal used a firearm (§ 12022.53, subds. (b) & (e)(1)) and during which a principal was armed with a firearm (§ 12022, subd. (a)(1)). Finally, Sandoval was charged with two counts of willfully threatening to commit a crime which would result in death or great bodily injury to another person (§ 422), during which he personally used a firearm (§ 12022.5, subd. (a)) and he or a principal was armed with a firearm (§ 12022, subd. (a)(1)). With regard to each of the counts, it was alleged that the felonies were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(B) & (C)) and that 18-year-old Sandoval could be charged and tried as an adult (Welf. & Inst. Code, § 707, subds. (c)(1) & (d)(1)).
On December 8, 2009, a hearing was held pursuant to Welfare and Institutions Code section 707.1, subdivision (b). The trial court indicated that it had an “affidavit by the probation department requesting that [Sandoval] be transported or transferred to county jail since he ha[d] become an adult, and [it was the court’s understanding that, although the request was untimely, Sandoval had been] involved in... a physical altercation... while being housed in juvenile detention.” After hearing what Sandoval had told his defense counsel, that he had been acting in self-defense, the trial court noted that Sandoval was being held with much younger individuals and that the court had to consider “protecting the safety of such individuals when presented with a situation like this.” The trial court continued, “And while I understand that fights do happen and that people have the right to defend themselves while being held in custody and that fights erupting in custody [are] not uncommon, that is a factor that the court must view as something negative on behalf of Mr. Sandoval. [¶] And so that being the case and there being no other information presented to the court at this point to convince the court it is in the best interest of... Mr. Sandoval to be retained in Juvenile Hall, I will find that it is appropriate for [him] to be transferred to adult custody and I will, therefore, sign the order remanding Mr. Sandoval to the custody of the L.A. County Sheriff’s Department.”
On May 13, 2010, as potential jurors were gathering in the hallway outside the courtroom, defense counsel informed the trial court that he had “leaned on [his] client as hard” as he possibly could to get him to take the People’s offer of 20 years in prison. Although the offenses had occurred when Sandoval was a juvenile, he was to be tried as an adult and, “although the offer by the prosecutor was for a lot of years[, ] it was far better than [the approximately 70 years Sandoval was] subject to.” The trial court addressed Sandoval and indicated that it believed the People’s offer of 20 years was a “fair offer in light of what [was] alleged.” The trial court continued, “[Y]our lawyer’s... said––and he knows this case better than anybody––that it’s a pretty tough case for the defense. [¶] So you know what happened. If you didn’t do it we’ll have a trial. But if you did [it], if you know you did [the alleged crimes] the question is sometimes asked why not cut your losses so that you know that you have a date and that you’ll be out with the family and so on at some point in your relatively young life even after 20 years versus potentially not getting out?”
Sandoval indicated that he wished to speak with his counsel. When he stated that he wanted to hear the People’s offer, the district attorney explained: “The offer was multiple counts for 20 years state prison. [¶] And the permutation... is a plea to count one with admission of the [section] 12022.5[3, subdivision] (b) [allegation]. And that’s for 15 years. [¶]... [¶]... I’d also like [Sandoval] to admit the 186[, ] but have that stayed. [¶]... [¶]... And then counts three, five and six are all 211’s. And so that’s one third the mid term on each. So that’s––we already have 15 so plus one plus one plus one [is] 18. [¶] And then count nine, the charge plus the weapon [section] 12022.5[, ] [subdivision] (a) with a mid term of four and the mid term on the count is two. One third of that is two for two more years.”
Sandoval decided that he would accept the People’s offer and enter pleas of no contest to the relevant charges. He waived his right to a jury trial, his right to a court trial, his right to confront and cross-examine the witnesses against him, his right to subpoena witnesses and present a defense and his privilege against self-incrimination. The district attorney informed Sandoval that he would be sentenced to 20 years in prison and that, upon his release he would be placed on parole. Should he violate parole he would be “sent back to state prison for one year for each parole violation.” After the prosecutor then explained to Sandoval the immigration and “Three Strikes” consequences of entering a plea, Sandoval pleaded no contest to the robbery of Richard Kim as alleged in count 1 of the information and admitted personally using a handgun during the offense. Sandoval also admitted that the offense had been “committed for the benefit of, at the direction of or in association with a criminal street gang with [the] specific intent to promote, further and assist in criminal conduct by gang members.” Sandoval next pleaded no contest to the second degree robbery of Juan Chilene as alleged in count 3 of the information, pleaded no contest to the robbery of Antoine Phillip De Silva as alleged in count 5 of the information, and pleaded no contest to the robbery of Sewan Kim as alleged in count 6 of the information. When the prosecutor then asked Sandoval how he wished to plead to the crime of “criminal threats, a felony and a strike offense, committed in Los Angeles County... upon Jorge Mecinas, ” Sandoval answered, “No contest” and admitted having personally used a handgun during the offense.
The trial court found “the waivers to be knowing, intelligent, express, explicit and understandingly made with a knowledge of the consequences.” It indicated that there was “a factual basis for the plea based on the transcripts [of the preliminary hearing]” and that the plea was “freely and voluntarily made.”
At proceedings held on June 2, 2010, the trial court sentenced Sandoval to the upper term of five years in prison for the second degree robbery of Richard Kim as alleged in count 1 of the information and imposed a 10-year enhancement for Sandoval’s use of a gun during the offense. As to the section 186.22 gang allegation, the trial court imposed a term of 10 years, then stayed the term “pursuant to the case settlement.” With regard to counts 3, 5 and 6, the trial court imposed terms of one-third the mid-term, or one year for each count, the terms to run consecutively to each other and to those imposed for count 1. For count 9, the trial court imposed terms of “one third of two [years] plus one third of four [years]” for the gun-use allegation. In total, the trial court sentenced Sandoval to a term of 20 years in prison. The court dismissed any counts and allegations not admitted.
Sandoval was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (§ 1202.45), a $150 court security fee (§ 1465.8, subd. (a)(1)), and a $150 criminal conviction assessment (Gov. Code, § 70373). He was awarded presentence custody credit for 493 days actually served and 74 days of good time/work time, or a total of 567 days.
Sandoval filed a timely notice of appeal on June 2, 2010. He filed an amended notice of appeal on July 28, 2010.
This court appointed counsel to represent Sandoval on appeal on September 13, 2010.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed December 21, 2010, the clerk of this court advised Sandoval to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On January 19, 2011, Sandoval filed a supplemental brief in which he asserted that his appointed trial counsel was ineffective in that counsel “lied to [him]” while he was in the holding tank. Sandoval states that counsel first told him that the district attorney was offering him seven years. Then, when Sandoval indicated that he would not accept such an offer, his counsel told him that if he went to trial he would be facing a life sentence. Sandoval indicates that counsel took advantage of him because he does not speak English and “didn’t know what was going on.” Sandoval has offered to take a lie detector test to “prove that [the robber] wasn’t [him].”
Initially, in order to present a viable issue, Sandoval’s statement that his counsel lied to him must be corroborated by independent, objective evidence. (In re Alvernaz (1992) 2 Cal.4th 924, 938, 945.) There is no such evidence in the record.
In addition, a review of the record indicates that, apart from what may have occurred in the holding tank, Sandoval was well aware of the consequences of entering a plea versus those of losing at trial. Before he decided to take the People’s offer of 20 years, Sandoval was advised that “although the offer by the prosecutor was for a lot of years[, ] it was far better than [the approximately 70 years Sandoval was] subject to.” The trial court addressed Sandoval and indicated that it believed the People’s offer of approximately 20 years was a “fair offer in light of what [was] alleged.” The trial court continued, “[Y]our lawyer’s... said––and he knows this case better than anybody––that it’s a pretty tough case for the defense. [¶] So you know what happened. If you didn’t do it we’ll have a trial. But if you did [it], if you know you did the question is sometimes asked why not cut your losses so that you know that you have a date and that you’ll be out with the family and so on at some point in your relatively young life even after 20 years versus potentially not getting out?” (Italics added.) After being so advised, then consulting with his counsel, Sandoval chose to enter a plea. He cannot now complain that he was misled.
Finally, Sandoval’s assertion that he is willing to take a lie detector test to show that he was not the individual who committed the charged crimes is unavailing. Evidence Code section 351.1, subdivision (a) provides that, “[n]otwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take... a polygraph examination, shall not be admitted into evidence in any criminal proceeding....”
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.