Filed 5/25/17 P. v. Martinez CA5









NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EDUARDO LUIS MARTINEZ,

Defendant and Appellant.


F073207

(Super. Ct. No. VCF313669A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Gary C. Paden, Judge.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appellant Eduardo Luis Martinez pled no contest to attempted murder
(Pen. Code, §§ 664 & 187, count 1), and admitted a great bodily injury enhancement
(§ 12022.7, subd. (a)) and a gang enhancement (§ 186.22, subd. (b)(1)(C)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On January 31, 2015, shortly after 2:00 a.m., Robert Perryman drove Michael Flores and two other people to the Day and Night Liquor in Tulare, California to put gas in his car. After Flores got out of the car and handed $5 for gas to a woman who was entering the store, Flores noticed a Lincoln LS drive through the parking lot with its occupants appearing to be looking at him. The Lincoln LS then drove slowly around the parking lot with its occupants continuing to look at Flores, who was now near the gas pumps. Perryman then got out of his car and placed an unknown object near the car’s gas cap as the Lincoln LS drove slowly out of the parking lot.
The Lincoln LS soon reentered the parking lot and Flores walked to the middle of the lot and assumed a fighting stance. As the Lincoln LS drove slowly toward Flores, the driver and rear seat passenger rolled down their windows. The driver then fired several shots at Flores from an unknown type of firearm, striking him several times on the knees. The occupants of Perryman’s car picked up Flores and took him to a hospital. Police officers recovered several nine millimeter casings from the scene.
A few days later, Tulare Police Detective Raymond Guerrero viewed surveillance video from the store. On February 11, 2015, at approximately 1:30 p.m., Detective Guerrero conducted a traffic stop of a Lincoln LS that resembled the car in the surveillance video. Martinez was driving the car with Angel Garcia as a passenger. Both men admitted they were Sureño gang members.
On February 23, 2015, during a warrant search of Martinez’s apartment in Pixley, California, officers located a Ruger P89 nine millimeter handgun. Test results for the shell casings found at the liquor store parking lot indicated that the casings probably came from the handgun located in Martinez’s apartment.
On February 25, 2015, Detective Guerrero spoke to Martinez’s girlfriend who admitted being the front seat passenger in the Lincoln LS during the shooting. She identified Martinez as the person who was driving the Lincoln LS and who shot Flores.
Detective Guerrero also interviewed Garcia. According to Garcia, Flores was a Norteño gang member. Just before the shooting, Flores brandished a firearm and flashed gang signs and Martinez brandished a firearm back at him. When he heard shots fired, Garcia yelled out “F… west side [sic] Tulare and south side [sic]” because he believed Flores and his friends were rival Norteño gang members.
On September 23, 2015, the Tulare County District Attorney filed an information charging Martinez with premeditated attempted murder (§§ 664 & 187, subd. (a),
count 1), shooting at a person from a vehicle (§ 26100, subd. (c), count 2), and grossly negligent discharge of a firearm (§ 246.3, subd. (a), count 3). All three counts alleged a great bodily injury enhancement. Counts 1 and 2 also alleged personal use of a firearm enhancements pursuant to section 12022.53, subdivisions (b), (c) and (d), and a gang enhancement (§ 186.22, subd. (b)(1)(C)). Count 1 also alleged personal use of a firearm enhancement pursuant to section 12022.5, subdivisions (a) and (d) and that the substantive offense was punishable with life imprisonment pursuant to section 186.22, subdivision (b)(5).
On November 19, 2015, Martinez pled no contest to attempted murder, without premeditation and deliberation, and admitted the gang and great bodily injury enhancements in that count, in exchange for the dismissal of the remaining counts and allegations and a stipulated prison term of 20 years.
On December 17, 2015, the court sentenced Martinez to the stipulated prison term of 20 years as follows: the middle term of seven years on his attempted murder conviction, a three-year term for the great bodily injury enhancement, and a 10-year term on the gang enhancement in that count.
Martinez’s appellate counsel has filed a brief, which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a document filed on
July 27, 2016, Martinez contends he shot Flores in self-defense because someone in Flores’s group brandished a weapon and that he should have been charged only with assault or a lesser crime than attempted murder because he shot Flores in the knees.
These issues are not cognizable on appeal because they concern Martinez’s guilt or innocence of the charge and enhancements to which he pled. As explained in
People v. Voit (2011) 200 Cal.App.4th 1353, 1364:
“A guilty plea convicts the defendant of the charged crime without proof at trial. [Citation.] ‘ “The legal effect of [a no contest plea] to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes.” (§ 1016, subd. 3.) A guilty plea “admits every element of the crime charged” [citation] and “is the ‘legal equivalent’ of a ‘verdict’ [citation] and is ‘tantamount’ to a ‘finding’ [citations]” [citation].’ [Citation.]
“Issues concerning the defendant’s guilt or innocence are not cognizable on appeal from a guilty plea. [Citations.] By admitting guilt a defendant waives an appellate challenge to the sufficiency of the evidence of guilt. [Citations.] The same restrictions on appellate issues apply after a no contest plea [citations] ….”
Further, following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION
The judgment is affirmed.