P. v. Urzua

Filed 4/1/10 P. v. Urzua CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant Jose Joab Urzua, represented by counsel, pled guilty to one count of robbery (Pen. Code, 211)^[1](count 1) with the personal use of a firearm ( 12022.53, subd. (b), 1192.7, subd. (c)(8)); one count of unlawfully transferring an access card ( 484e, subd. (a)) (count 2); one count of receiving stolen property ( 496, subd. (a)) (count 3); one count of obliterating the serial number on a firearm ( 12090) (count 4); and two counts of unlawfully using an access card ( 484g, subd. (a)) (counts 5 & 6). In return, defendant was sentenced to the indicated sentence of 12 years in state prison. Defendant appeals from the judgment. His notice of appeal challenges the sentence or other matters occurring after the plea, the validity of the plea, and the denial of his motion to strike the enhancement.

I

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On July 19, 2008, at approximately 2:30 a.m., the victims (Joseph and Yanez) were standing in a parking lot of a bar in Palm Desert, next to Josephs vehicle talking, when a car driven by coparticipant Martinez approached. Defendant jumped out of the passengers side of the vehicle, waved and pumped a shotgun at Joseph and Yanez, then took Josephs purse, which was sitting on the trunk of her car. Defendant then said, Thank you, got back in the car, and drove away. Credit card purchases at a gas station and fast food restaurant were made with Josephs credit card.

Police eventually located defendant after he used Josephs cellular telephone. Personal property belonging to Joseph was discovered in a vehicle in which defendant was a passenger. Both victims identified defendant and Martinez in an in-field lineup. After defendant waived his constitutional rights, defendant admitted to robbing the victims, but he claimed that it was Martinezs idea. Martinez also waived his constitutional rights. He admitted the shotgun was his, but then stated it was defendants idea to rob the victims because someone owed him some money. A search of defendants residence revealed an unloaded shotgun with its serial number removed, an iPod, a camera, and Josephs purse.

Following the preliminary hearing, on September 23, 2008, an information was filed charging defendant with one count of robbery ( 211) (count 1) with the personal use of a firearm ( 12022.53, subd. (b), 1192.7, subd. (c)(8)); one count of unlawfully transferring an access card ( 484e, subd. (a)) (count 2); one count of receiving stolen property ( 496, subd. (a)) (count 3); one count of obliterating the serial number on a firearm ( 12090) (count 4); and two counts of unlawfully using an access card ( 484g, subd. (a)) (counts 5 & 6).

On May 18, 2009, defendant filed a motion to strike the gun enhancement or other equitable relief and supporting documents, arguing his privately retained counsel was ineffective for causing defendant an opportunity to lose a seven-year deal with the district attorney. Defendant further suggested that Martinez had received a two-year deal because Martinezs family friend was a victim witness advocate employed by the Riverside County District Attorneys Office, and she had helped to negotiate Martinezs plea.^[3] Defendant argued that the prosecutors failure to disclose this relationship constituted unclean hands thereby entitling him to equitable relief. Defendant also argued that the gun enhancement constituted cruel and unusual punishment. The People thereafter filed their opposition and supporting documents.

A three-day hearing on defendants motion began on August 28, 2009. The court denied defendants request to strike the gun enhancement based on cruel and unusual punishment. Following testimony from several witnesses, including defendants prior trial counsels, Martinezs trial counsel, the deputy district attorney on Martinezs case, and defendant, the trial court denied defendants ineffective assistance of counsel claim. The trial court also denied defendants motion for equitable relief.

Defendant subsequently pled guilty as charged and admitted the gun use enhancement in exchange for an indicated sentence of 12 years in state prison. At the change of plea hearing, the court reviewed the plea form with defendant and asked defendant whether he had reviewed the form with his attorney and whether he understood the form, including his constitutional rights. Defendant replied in the affirmative. The court also asked defendant whether he agreed to waive his constitutional rights, and whether he understood the consequences of pleading guilty. After the court explained to defendant the consequences of pleading guilty, defendant replied in the affirmative. Defendant also indicated that he was pleading guilty based on his own free will. The court found the guilty plea was entered into freely, knowingly, and voluntarily.

On October 2, 2009, defendant was sentenced to a total term of 12 years in state prison: the low term of two years for the robbery, plus a consecutive 10 years for the gun use enhancement. The remaining counts were either ordered to be served concurrently or stayed. Defendant was awarded 507 days of credit for time served.

On September 10, 2009, defendant filed a notice of appeal based on the sentence or other matters occurring after the plea. He also challenged the validity of the plea and the denial of his motion to strike the enhancement and for equitable relief. Defendants request for a certificate of probable cause was granted.

II

DISCUSSION

Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, potential arguable issues, and requesting this court undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.

Defendant has failed to show that his counsel failed to act in a manner expected of other reasonably competent attorneys, or that he had suffered prejudice as a result of his counsels competency. (People v. Wash (1993) 6 Cal.4th 215, 269; Strickland v. Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Defendant has also failed to show he was entitled to equitable relief.

The record shows that defendant was thoroughly advised of the rights being waived and the consequences of pleading guilty. There is substantial evidence to support the trial courts finding that the plea was knowing, intelligent, and voluntary. In addition, the sentence was authorized and was imposed in accordance with the terms of the plea agreement. ( 211, 12022.53, subd. (b).)

Moreover, we are persuaded from our independent review of the record that the 10-year enhancement imposed under section 12022.53, subdivision (b), for defendants use of a shotgun does not constitute cruel and unusual punishment under the facts of this case. (People v. Dillon (1983) 34 Cal.3d 441, 477; In re Lynch (1972) 8 Cal.3d 410, 424; People v. Felix (2003) 108 Cal.App.4th 994, 999-1001.) Although defendant did not actually fire the shotgun and, therefore, did not engage in the most serious form of gun use, he nevertheless used the shotgun to accomplish the robbery.

We have completed our independent review of the record and find no arguable issues.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P. J.

KING

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The factual background is taken from the preliminary hearing transcript and the probation officers report.

^[3] Martinez was a juvenile at the time of the incident, and defendant was 19 years old.