P. v. Jaimez












Filed 3/8/16 P. v. Jaimez CA6





NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS MARIO JAIMEZ,

Defendant and Appellant.

H043789
(Santa Clara County
Super. Ct. No. C1493685)

Defendant Carlos Mario Jaimez pleaded no contest to two counts of assault with a firearm (Pen. Code, § 245, subd. (a)).[1] He also admitted the truth of the personal use of a firearm (§ 12022.5, subd. (a)) and criminal street gang (§ 186.22, subd. (b)(1)(C)) allegations as to both counts. Defendant requested a certificate of probable cause on the ground that the trial court erred when it failed to grant his motion to withdraw his plea. The trial court granted his request. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d. 436 on behalf of defendant. Defendant was notified of his right to submit written argument on his own behalf, but he has failed to avail himself of the opportunity. We affirm the judgment.


I. Statement of Facts[2]
In October 2014, a group of females attacked the victim at her home. When the victim’s father and brother returned home, defendant shot at them. The victim’s father suspected defendant’s gang involvement due to his tattoos, including “IV” and “VMC” on his face.

II. Statement of the Case
In October 2014, a felony complaint was filed and chargeddefendant with several offenses. Counts one and two alleged attempted murder (§§ 664. subd. (a), 187). It was further alleged that defendant personally discharged a firearm (§ 12022.53, subds. (b), (c)) during the commission of both offenses. A criminal street gang allegation was also included as to both counts. (§ 186.22, subd. (b)(1)(C).) Count three alleged that defendant committed first degree burglary (§§ 459, 460, subd. (a)) with a person present in the residence within the meaning of section 667.5, subd. (c)(21). A criminal street gang allegation was also included. (§ 186.22, subd. (b)(1)(C).) Counts four and five alleged assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). A criminal street gang allegation was also included as to both counts.
In October 2015, the complaint was amended to add counts six and seven, which both alleged assault with a firearm (§ 245, subd. (a)). Both counts also allegedpersonal use of a firearm (§ 12022.5, subd. (a)) and criminal street gang (§ 186.22, subd. (b)(1)(C)) enhancements.The prosecutor stated that defendant had chosen to plead no contest or guilty to counts six and seven and admit the enhancements in exchange for a prison sentence of 15 years.
At the same hearing, the trial court reviewed the waiver of rights form that defendant had completed. Defendant acknowledged that he had read and understood everything that he had initialed and that he had signed the form. Defendant also stated that his counsel had answered any questions that he had about the form. The trial court advised defendant of potential immigration consequences and that since counts six and seven constituted strikes within the meaning of the “Three Strikes” law, his sentence could be doubled or extended to a life sentence in a future case. The trial court also advised defendant of his rights to a jury trial, to cross-examine witnesses, to present defense evidence, to testify on his own behalf or to remain silent, and to a preliminary hearing. After defendant stated that he understood his rights, he waived them. In response to questioning from the trial court, defendant indicated that he was entering into the negotiated plea agreement for his own benefit, that no one had made any other promises to him to induce him to plead guilty or no contest, that no one had threatened him, that he understood “what’s going on this morning,” that he had not taken any substances that would prevent him from thinking clearly, that he had sufficient time to talk to his counsel about the charges and any defenses, and that his counsel had answered all of his questions, and that he did not have any additional questions for counsel before he entered his plea. The trial court allowed defendant to discuss the custody credit limit with his counsel and defendantsubsequently indicated that he understood the limit. Defendant also stated that he had no other questions for his counsel. After the parties had stipulated to a factual basis for the plea, defendant pleaded no contest to counts six and seven and admitted the enhancement allegations.
In March 2016, defendant filed a motion to withdraw his plea. On May 18, 2016, the trial court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. After denying his Marsden motion, the trial court held a hearing on defendant’s motion to withdraw his plea. Defendant sought to withdraw his plea based on an inadequate opportunity to review discovery and his learning disabilities. The trial court denied his motion.
The trial court sentenced defendant to 15 years in state prison.
Pursuant to People v. Wende, supra,25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.

III. Disposition
The judgment is affirmed.























_______________________________
Mihara, J.



WE CONCUR:






_____________________________
Elia, Acting P.J.






_____________________________
Bamattre-Manoukian, J.

















People v. Jaimez
H043789



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[1] All further statutory references are to the Penal Code.
[2] Since there was neither a preliminary hearing nor a trial, the statement of facts is taken from the probation report.