Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, No. 1408958, Timothy W. Salter, Judge.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Franson, J.
PROCEEDINGS
Appellant, Christopher Villalobos, was a minor prosecuted as an adult and charged in an information filed on May 21, 2010 with attempted first-degree murder (Pen. Code, §§ 664 & 187, subd. (a), count one), felony assault with a firearm (§ 245, subd. (a)(2), count two), felony discharge of a firearm from a vehicle at another person (§ 12034, subd. (c), count three), and felony commission of his offenses for the benefit of a criminal street gang (§ 186.22, subd. (a), count four). The first three counts alleged a criminal street gang enhancement (§ 186.22, subd. (b)(1)). Count one alleged appellant personally used a firearm within the meaning of section 12022.53, subdivision (c). Count two alleged appellant personally used a firearm within the meaning of section 12022.5, subdivision (a).
Unless otherwise designated, all statutory references are to the Penal Code.
On June 4, 2010, appellant entered into a plea agreement. Appellant would admit count three and the gang enhancement for a total prison term of eight years and dismissal of the remaining allegations. Appellant was advised of, and waived, his constitutional rights pursuant to Boykin/Tahl. The court advised appellant of the consequences of his plea. The parties stipulated that the preliminary hearing transcript would serve as the factual basis for the change of plea. Appellant pled no contest to count three and admitted the gang enhancement. The court found appellant’s offense was a serious felony within the meaning of Welfare and Institutions Code section 707, subdivision (b).
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Appellant waived his right to a probation report and agreed to immediate sentencing. The court sentenced appellant to a prison term of three years on count three and to a consecutive term of five years for the gang enhancement for a total prison sentence of eight years. Appellant filed a timely notice of appeal but the court denied his request for a certificate of probable cause.
FACTS
Manuel Retana was inside his home in Modesto when his younger brother told Retana a friend was being attacked by several people in the backyard. Retana and other relatives went to the backyard to break up the attack. Appellant was one of the attackers. Right after the attack, a white car raced through an alley. Retana saw a rear window roll down and a shotgun came out of the window. Retana pushed his mother away and heard a loud gunshot. He saw a pattern of small holes in a tight group on his shirt.
Christina Duarte saw appellant in the car holding a gun. Duarte heard appellant yell, “I told you we’d be back, buster, ” saw a spark coming from the shotgun, and heard the sound of the gunshot.
Detective Pouv testified that appellant identified himself as a gang member nine times, associated with gang members four times, had a Sureño tattoo, and possessed writings related to gangs. Pouv testified that Retana was a member of the Norteño gang. Pouv opined that appellant was a member of a subset of the Sureño gang. Pouv further believed appellant’s attack benefited the Sureño gang.
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.) 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 25, 2011, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.