P. v. Hernandez
Filed 11/15/13 P. v. Flores
CA1/5
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IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION
FIVE
>
THE PEOPLE, Plaintiff and Respondent, v. DANIEL V. FLORES, Defendant and Appellant. | A138552 ( Super. |
Daniel
V. Flores appeals from a judgment of
conviction and sentence that was imposed after he entered a no contest plea
to a robbery charge and admitted related allegations. His attorney has filed a brief seeking our
pursuant to People v. Wende (1979) 25
Cal.3d 436 (see Anders v. California (1967)
386 U.S. 738), in order to determine whether there is any arguable issue on
appeal. We find no arguable issue and
affirm.
I.
FACTS AND PROCEDURAL HISTORY
An
information filed in September 2011 charged Flores and
two codefendants, Steven Chavez and Jesse Afoa, with two counts of
robbery. (Pen. Code, § 211.)
acted in concert with his codefendants and entered a domestic structure within
the meaning of section 213, subdivision (a)(1)(A). It was further alleged that a principal was
armed with a firearm during the commission of the offenses. (§ 12022, subd. (a)(1).)
Flores
was later charged with felony failure to appear (case No. SCR-628993).
A.
No Contest Plea and Admissions
On
February 13, 2013, Flores
signed a “Defendant’s Waiver of Constitutional Rights Prior to Entry of Guilty
or No Contest Plea.†In this written
plea agreement, Flores stated that he was pleading no
contest to robbery of an inhabited dwelling with two or more accomplices (§§ 211,
213, subd. (a)(1)(A)) and admitting the enhancement allegation under section
12022, subdivision (a)(1). He further
represented that he understood and waived specified constitutional rights, he
understood his maximum punishment would be 10 years in state prison, and he
understood other specified consequences of his plea. In addition, Flores expressed his
understanding that there was no agreement as to what the specific term of
sentence would be, he could be sentenced up to the 10-year maximum, but the
“court has indicated low term of [three years] plus one year for firearm
enhancement†on the charges.
At
the plea hearing on February 13, 2013,
Flores was present and represented by counsel. After being advised of his
that he understood and waived those rights, Flores entered a plea of no contest
to one count of robbery (§ 211), admitted the gun enhancement allegation
(§ 12022, subd. (a)(1)), and admitted that his crime involved
voluntarily acting in concert with others and entering a residential structure
(§ 213, subd. (a)(1)(A)). The court
found the plea was made knowingly and intelligently, and defense counsel
confirmed there was a factual basis for the plea. As to case No. SCR-628993, Flores pled no
contest to willfully evading the process of the court for failing to
appear. (§ 1320.5.) The prosecution agreed to dismiss the
remaining robbery count, and Flores was promised he would receive a sentence of
four years eight months (three years for the robbery, one year for the firearm
enhancement, and eight months for the failure to appear) or he would be
entitled to withdraw his plea.
B.
Presentence Report’s Factual
Statement
The
felony presentence report summarized the facts relevant to Flores’s offenses
based on preliminary hearing transcripts and statements from the victims as
recorded in the police report.
After
observing marijuana being grown in the apartment of victims Sauls and Hamm,
Flores invited Hamm to “hang out†with him on September 12, 2010. Hamm accepted his invitation, and during the
afternoon of September 12 spent time with Flores and Sauls smoking marijuana in
Armstrong Woods. Before the three of
them returned to the victims’ residence, Flores borrowed Sauls’s cell phone.
Around
6:00 p.m., Flores, Sauls and Hamm arrived at the apartment. After Flores briefly stalled, the three of
them walked upstairs to the residence.
As they went inside the apartment, two men (later identified as
codefendants Afoa and Chavez) entered the residence after them, brandished
handguns, and ordered the victims to sit on the couch and later to lie on the
floor. The victims were bound and held
at gunpoint, and Afoa threatened that they would be killed if they moved. Afoa removed money from Sauls’s wallet and
then ransacked the apartment, collecting currency, an Xbox, a laptop, an iPod,
apartment and car keys, and other items including 10 marijuana plants. Chavez then instructed Flores to carry the
loot outside, and the two assailants and Flores fled the scene in a
vehicle.
Contacted
by police while at Chavez’s residence, Flores asserted that he had been
kidnapped by the suspects but was able to talk his way out of the situation. Sauls and Hamm identified Chavez in a
photographic lineup as one of the suspects, and Chavez was arrested. The victims asserted that clothing seized
from Chavez was similar to what was worn by the suspects. Thereafter, Flores was arrested. Sauls was informed by his telephone company
that, after Flores borrowed Sauls’s phone, the phone was used to make a call to
a number later identified as belonging to Chavez.
In
text messages sent between Flores and Chavez on September 12, 2010, Flores
expressed frustration that he was no longer at the victims’ residence and was
unable to leave the residence unlocked.
Chavez asked Flores for a plan, and Flores instructed him to wait in the
car and he would be apprised of their locations. Flores texted Chavez the number of the
victims’ apartment. He further told
Chavez: “Ima be 0n way s0on d0nt g0
there yet til I say ok I want u to be there when we pull up we walk up u c0me
fr0m behind when we goin into the d0or.â€
From other text messages, police determined the third person with Flores
and Chavez at the time of the robbery was Afoa.
C.
Sentencing
On
March 14, 2013, Flores was sentenced to the agreed term of four years eight
months in state prison, comprised of the following: the low term of three years for the
robbery; a consecutive eight-month term (one-third the midterm) for the failure
to appear; and a consecutive one-year term for the enhancement under section
12022, subdivision (a)(1).
D.
Appeal
Flores
filed a notice of appeal in April 2013 and requested a
“not aware that [he] would stay in prison 85 [percent],†his defense attorney
failed to explain the allegation that he was in possession of a handgun, he
told his attorney in a letter delivered on the day of his sentencing that he
wanted to withdraw his plea, his defense attorney was not competent, and he was
dissatisfied with his attorney’s performance.
The court denied the request for a certificate of probable cause.
II.
DISCUSSION
Flores’s
appellate counsel represents in the opening brief in this appeal that counsel
wrote to Flores and advised him of the filing of a Wende brief and his opportunity to personally file a written
statement of any issues he wished to call to the attention of the court within
30 days after the filing of the Wende
brief.
We
have not received any filing from appellant.
We
find no arguable issues on appeal.
There
are no legal issues that require further briefing.
III.
DISPOSITION
The
judgment is affirmed.
NEEDHAM,
J.
We concur.
JONES, P. J.
BRUINIERS, J.
Code.
