P. v. Villarreal

Filed 8/17/07 P. v. Villarreal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. John Vogt, Judge.

William J. Capriola, under appointment by the Court of Appeal, for Defendant Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Michael Anthony Villarreal and three codefendants were charged with first degree murder of Antonio Castillo, with an enhancement for committing the offense for the benefit of a criminal street gang. Appellant and the codefendants entered into a negotiated disposition whereby they pleaded guilty to voluntary manslaughter, admitted the gang enhancement, waived their appellate rights, and would receive a sentence of 21 years. Appellant then sought to withdraw his plea and admission. The court denied the motion and imposed the aggregate term of 21 years. Appellant has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We will dismiss the appeal.

FACTS^[1]

Around 7:45 p.m. on May 30, 2004, the Sanger Police Department received an anonymous call that some gang members were in a vehicle and possibly armed; the caller gave a license plate number of 2BBH059. An officer found a vehicle driving in Sanger with that license plate and performed a traffic stop. The officers video camera on his patrol car filmed the encounter. There were four people in the car. Codefendant Miguel Angel Castillo was the driver, codefendant Christopher Lara was in the front passenger seat, appellant Michael Anthony Villarreal was in the rear passenger-side seat, and codefendant Valentin Pena was in the rear drivers-side seat. Castillo was wearing a red and white jersey-style shirt with denim pants, and a red and white hat with a Bulldog emblem. Lara was wearing a black hat with a C emblem, a black T-shirt, and dark pants. Pena was wearing a white tank-top T-shirt with grey or blue pants. Appellant was wearing a red hat, a red T-shirt, and dark pants. The officer found Lara in possession of a closed folding knife, which had a black handle and a three-inch blade. The officer did not find any evidence of criminal activities, returned the knife to Lara, and allowed them to leave.

Around 10:39 p.m., Fresno Police Officer Taylor was on patrol when he saw an Oldsmobile traveling on Blackstone and Shields in Fresno. Taylor noticed the car because there were five people insidetwo in the front and three in the backand there was a hat facing backwards in the rear of the vehicle which displayed a Bulldog emblem. Taylor noted the cars license plate and description, but did not perform a traffic stop on that vehicle.

At 10:58:45 p.m., the Fresno Police Department received a dispatch about a stabbing at Blackstone and Nees in Fresno. The paramedics found the victim, Antonio Castillo (Antonio), had been stabbed multiple times and his clothes were saturated with blood. Antonio was transported to the hospital and died at 2:00 a.m.

Antonio had suffered eight stab wounds, four of which were superficial, but the other wounds penetrated his chest and abdomen. The cause of death was perforations of the right and left lungs and spleen from the multiple stab wounds. Antonio suffered abrasions, meaning skin scrapings, on his head, torso, abdomen, arm, and hip, and bruises on both sides of the neck and the right collar bone area; there were no defensive wounds. Antonio had numerous tattoos, including happy and sad clown faces, VCG13, and one dot near the right eye and three dots at the left elbow.

The police interviewed the witnesses and determined Antonio had been walking on Blackstone with his brother, Juan Louis Castillo, and his friends, Felipe Avalos, Gerardo Diaz, and Barea Batista. All of the victims friends had blood on their clothing, but they had not been injured, there was no evidence that they had been involved in a physical altercation, and they had tried to help the victim after he had been stabbed.

Juan Castillo, Antonios brother, said they had been walking northbound on the east side of Blackstone, toward Nees, when a burgundy Cutlass pulled up alongside them. Juan said the occupants of the car said something but he could not tell what it was. Juan said seven or eight Hispanic males jumped out of the car, and Juan immediately ran away. Juan looked back and realized they were attacking Antonio so he ran back, and the suspects fled. Juan said one suspect got back in the car and drove away, and the other suspects fled on foot toward the west side of Blackstone. Juan said the incident happened very fast. Juan found Antonio bleeding profusely. Juan admitted he used to be associated with the Sureno gang.

Felipe Avalos said he had been walking with Juan and Antonio. He said the occupants of a burgundy Oldsmobile drove past them and said something similar to scrapping, a derogatory fighting term used by an opposing gang member to describe a Sureno gang member. The Oldsmobile drove away and then returned, driving northbound, and pulled up next to their group. The occupants of the car got out and attacked Antonio, and Avalos ran away. He also looked back, realized Antonio was in trouble, and went back to help him. The suspects fled. Avalos said he used to be a member of the Sureno gang.

Gerardo Diaz and Barea Batista had also been with the victims group that night. They said the burgundy Oldsmobile drove past them and the occupants made comments to them. The car returned a few minutes later and the occupants attacked Antonio. Batista said he was an associate of the Surenos.

Ian Stocks, who was not part of the victims group, stated he was at the traffic light at Nees and Blackstone and saw the fight. Stocks said he heard yelling, saw a burgundy vehicle, several people got out of the car, and they attacked and beat a man. The victim was bleeding badly. Stocks said one person who had been involved in the fight got into the burgundy car and drove away.

Other witnesses told the officers the vehicle was a burgundy Oldsmobile with custom white wall wheels and gold Dayton rims, with a license plate number of 2BBH059. Officer Taylor received the stabbing dispatch and advised the other officers that he had seen that same vehicle at Blackstone and Shields, about 10 minutes before he heard the stabbing dispatch.

The police found blood drops and a drying pool of blood on the road and curb at the corner of Blackstone and Nees, and more blood drops across the street. The blood drops continued in the direction of a Hooters restaurant, located several hundred yards from the stabbing scene. The blood trail terminated before it reached the restaurants location. There were beer cans on the curb. A folding knife, with a three-inch single-edge blade, was found near a trashcan outside of a Starbucks.

Around 11:00 p.m., the manager of the nearby Hooters restaurant noticed three men enter the establishment and go into the restroom. There was blood on each mans clothing, and one man seemed to have a hand injury. The manager and security guard later went into the restroom and found a significant amount of blood on the counter and sink, and it appeared the three men had been cleaning up some blood.

The restaurants video surveillance cameras filmed the men as they walked into the restroom. The time-stamp on the video reflected the men entered the restaurant at 10:59:32 p.m., which was 47 seconds after the police received the 911 call about the stabbing. Detective Brad Alcorn reviewed the restaurants videotape and recognized the three men as being in the car during the Sanger traffic stopPena, appellant, and Lara. The three men appeared to be wearing the same clothes as depicted in the Sanger police videotape. Pena was wearing a white tank top and denim jeans, and his hand was in his right pocket. Appellant was wearing a white T-shirt and dark pants, a red cap, and the red T-shirt seen in the Sanger video was draped over his arm. Lara was wearing a black T-shirt and the same black baseball cap, and the cap was turned backwards.

Around 11:10 p.m., Officer Taylor saw the 1984 burgundy Oldsmobile, with the license plate of 2BBH059, at Blackstone and Bullard, and performed a traffic stop. The only occupant was the driver, codefendant Miguel Angel Castillo. Castillo told Officer Taylor that he had been in Fresno by himself. Castillo was wearing a white tank-top T-shirt and jeans. He was taken to police headquarters, but released later that night.

The burgundy Oldsmobile was subsequently searched. A red and white jersey-style shirt was in the front passenger seat. A red and white Bulldog baseball hat was sitting in the rear window, with the Bulldog emblem facing out the window. There was dried blood all along the passenger side and the back seat.

On June 3, 2004, Detective Alcorn served a search warrant on Laras residence and spoke with Lara. Alcorn told Lara that he was not in custody and asked about the stabbing. Lara said he was not in Fresno when the stabbing occurred. Alcorn advised Lara about the videotape from the Sanger traffic stop. Lara admitted he was in the car in Sanger, but denied he was in Fresno. Alcorn advised Lara about the videotape from Hooters. Lara again denied being in Fresno. Alcorn noticed Lara had duct tape on two fingers. Lara removed the tape and showed he had small cuts on his fingers, and said he cut his hands at work.

Laras mother arrived home and Alcorn explained the investigation to her. She spoke privately to Lara in another room. When they emerged, Lara admitted he had been in Fresno, described being at the stabbing scene, and said everything happened very fast.

Detective Alcorn testified that during the search of Laras house, he found Bulldog symbols and patches, and the word Chankla written on CD cases. He also found a belt, pants, and shoes with blood on them.

Also on June 3, 2004, Detective Alcorn served search warrants at the homes of appellant, Castillo, and Pena. The police found bloody shoes and pants at Penas house.^[2] There was a great deal of gang indicia at Castillos house, including red and white colors, Bulldog emblems, drawings of the Bulldog emblem, and writings with the words Bulldogs, Chankla, or Sanger Chankla Bulldogs.

On June 9, 2004, Detective Alcorn arrested the other suspects in this case. Appellant was arrested at his job, and Pena and Castillo were arrested at Castillos house. Castillo had tattoos which said Sanger and Chankla, and depicted a dog paw. Appellant had a tattoo of a woman wearing a hat. Lara had tattoos of two dog paws, and the letters CKL. Pena also had tattoos of dog paws, a bulldog, and SCBDS.

Detective Alcorn testified he was aware of a group known as the Sanger Chankla Bulldogs, a set of the Fresno Bulldogs, and the colors red and white were associated with the Chankla Bulldogs. At the preliminary hearing, the parties stipulated that sufficient evidence existed for a holding order on the criminal street gang enhancement.

Detective Alcorn interviewed appellant after he was arrested and advised him of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Appellant said he understood his rights, and Alcorn asked about his involvement in the stabbing. Appellant said he was not involved. Alcorn asked about the traffic stop in Sanger. Appellant said he was stopped by the officer sometime after the stabbing. Alcorn testified appellant mentioned the Hooters videotape, and indicated he was aware of it. Alcorn testified appellants comment was interesting because the only people who knew about that videotape were the police and Lara, and the police had not released that information to the media.

Juan Castillo, Antonios brother, subsequently identified codefendant Miguel Angel Castillo as the driver of the Oldsmobile. Juan did not know him and was not related to him. Juan also identified Castillos car as the vehicle from which the suspects emerged. Juan said the driver never left the vehicle during the fight.

Procedural History

On June 11, 2004, a complaint was filed in the Superior Court of Fresno County charging appellant Michael Anthony Villarreal and codefendants Miguel Angel Castillo, Christopher Lara, and Valentin Santana Pena with count I, murder of Antonio Castillo (Pen. Code,  187), with the special allegation the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). Appellant and the codefendants pleaded not guilty and denied the gang enhancement.

On September 24 and 27, 2004, the joint preliminary hearing was held for appellant and the codefendants and they were held to answer.

On October 12, 2004, appellant was arraigned on the information and pleaded not guilty. The trial was set for March 2005 but repeatedly continued.

The Plea Proceedings

On June 1, 2006, appellant and the three codefendants appeared with their defense attorneys. The prosecutor stated an offer had been made to the parties, the defendants had made a counteroffer, and the prosecutor had accepted the counteroffer.

That would be a plea to a violation of Penal Code Section 192(a), voluntary manslaughter with a stipulated eleven-year term and, of course, I would amend Count One to reflect that as a reasonably-related charge also admitting the violation of Penal Code Section 186.22(b)(1) and pursuant to subsection (b)(1)(C). Under that section that would be a 10-year term for a total stipulated term of 21 years.

The prosecutor stated appellant and the codefendants would receive the same resolution, and the prosecutor would also move to dismiss appellants three trailing misdemeanor cases.

The prosecutor presented the court with four separate changes of plea and waivers forms, which had been signed by appellant and the three codefendants. As to appellant, the plea form stated he would plead guilty to voluntary manslaughter and admit the gang enhancement, and the parties stipulated to a total term of 21 years, based on the aggravated term of 11 years for manslaughter with a consecutive term of 10 years for the gang enhancement; all remaining cases would be dismissed; and restitution would be reserved. The form stated appellants constitutional rights and consequences of a guilty plea, that he understood and waived those rights, that he was entering the plea freely and voluntarily, and the factual basis for the plea was the preliminary hearing transcript. The form further stated that another possible consequence of the plea was the waiver of his appellate rights, as included in an attached waiver form. Appellants initials were at the end of each advisement and he signed the document.

Appellant also signed a document entitled Waiver of Appellate Rights, in which he declared that he had the right to appeal his pleas, admissions, and sentence; that his plea would result in a determinate term of 21 years and allow him to avoid a possible indeterminate sentence resulting from a potential murder conviction; he had considered all these factors and knowingly and intelligently decided to waive his appellate rights as a condition of his guilty plea and receiving the benefit of the plea bargain; and that he understood he was pleading guilty to voluntary manslaughter and admitting the gang enhancement as a condition of the plea agreement. He further declared he had not been made any promises other than those contained in the plea agreement, he had not been threatened or coerced in any way to waive his appellate rights, and his decision to waive his appellate rights was made freely and voluntarily. He declared he had not taken any medication, drugs, alcohol, or any other substance to interfere with his ability to understand, and knowingly and intelligently waive his appellate rights. Appellant waived his right to appeal the plea or sentence, raise ineffective assistance issues or any other issue of fact or law, and his right to collaterally attack the plea or file a writ of habeas corpus. The form listed his specific appellate rights, appellants initials were on the waiver lines, and appellant signed the document. Appellants attorney also signed the declaration that he had explained the waiver to appellant and he understood the consequences.

The court asked appellant if he understood the nature and consequences of his waivers.

[THE COURT:] Mr. Villarreal, Michael Villarreal, same questions to you. Did you have enough time to review this Change of Plea Form and this Waiver of Rights Form with your attorney?

[APPELLANT]: Yes.

THE COURT: Counsel, thats all correct?

[DEFENSE COUNSEL]: That is correct, your Honor.

THE COURT: Okay. Mr. Villarreal, do you understand the charges youre pleading to today?

[APPELLANT]: Yes.

THE COURT: Do you understand the consequences of it? Youre going to be stipulating to receiving 21 years in state prison. Do you understand that?

[APPELLANT]: Yes.

THE COURT: And this form here, the white document that is three or four pages that Im holding up, do you understand that youre giving up your right to appeal any of the findings and orders leading up to this plea today?

[APPELLANT]: Yes.

THE COURT: Youre giving up your right to appeal the plea youre entering into today?

[APPELLANT]: Yes.

THE COURT: And youre giving up your right to appeal any sentencing issues. Do you understand that?

[APPELLANT]: Yeah.

The court separately asked the codefendants if they understood the plea and waiver forms, and they stated they understood their constitutional rights and waivers thereof.

The court then advised appellant of his constitutional rights to a jury trial, confront and cross-examine witnesses, and privilege against self-incrimination. Appellant stated he understood and waived each of his constitutional rights, and appellants attorney joined in the waivers. The codefendants were similarly advised of and waived their constitutional rights.

Thereafter, appellant pleaded guilty to voluntary manslaughter and admitted the gang enhancement, his attorney stipulated to a factual basis for the plea, and the three defendants entered the identical pleas and admissions. As to each defendant, the court accepted the pleas and waivers of appellate rights as knowing, intelligent, and voluntary, that there was an understanding of all possible consequences, direct and indirect, and the pleas were supported by a factual basis in all respects. The court granted the prosecutors motion to dismiss the three pending misdemeanor cases against appellant and set the sentencing hearing.

Motion to Withdraw the Plea and Sentencing

On August 1, 2006, appellant and the codefendants appeared with their attorneys for the sentencing hearing. The attorneys stated that appellant, Lara, and Castillo wanted to withdraw their pleas, but Pena wanted to proceed with sentencing. The prosecutor advised the court that the defendants had not filed any motions for either a continuance or to withdraw the pleas. The prosecutor also noted the negotiated disposition was a package offer, and a motion to withdraw possibly could affect Penas case.

The court found that appellant, Lara, and Castillo had made a timely motion to withdraw their pleas since judgment had not been pronounced, but clarified that I am going to require that written motions to withdraw the plea be filed and noticed to the People and Im going to set the date for that. The court found good cause for a continuance, and ordered the parties to file all written motions by August 22, 2006, at which time it would consider the matter. The court also ordered the reporter to prepare the transcript from the June 1, 2006, change of plea hearing. The court advised Pena that his sentencing would be continued pending any motions.

On August 22, 2006, appellant and the codefendants appeared with their attorneys for the continued hearing. Appellant had been represented by Douglas Foster of Barker & Associates, but Mark Broughton of that office appeared on his behalf. Mr. Broughton advised the court that appellant said he wanted to pull his plea back, but Mr. Foster had said there were no grounds to withdraw other than perhaps ineffective assistance. The prosecutor objected and noted the plea disposition was based on a defense counteroffer, appellant had filed a waiver of appellate rights, and appellant failed to file any written motions, as required by the court.

The court denied appellants motion to withdraw the plea:

... I set this matter over for the purpose of counsel filing a Notice of Motion to withdraw the plea. It was not done. Furthermore, I have reviewed the transcript of the proceedings in which I accepted the plea. I am aware of the fact that this was, in fact, a counteroffer that the defendants made to the People and the People accepted it.

In my review of the transcript of the Change of Plea I dont see any basis for them, any of the defendants trying to withdraw their pleas at this time.

Thereafter, the court proceeded with the sentencing hearing. Appellants counsel requested the court to dismiss the three pending misdemeanor cases against him, and the prosecutor concurred with the terms of the plea disposition.

The court denied probation and stated it was going to follow the plea agreement. It imposed the agreed upon upper term of 11 years for count I, voluntary manslaughter, with a consecutive term of 10 years for the gang enhancement, for an aggregate term of 21 years. The court awarded 805 days of actual credits and 120 days of custody credits, for a total of 925 days pursuant to Penal Code section 2933.1. The court ordered appellant to pay a $5,000 restitution fine pursuant to section 1202.4, subdivision (b), and a $5,000 restitution fine pursuant to section 1202.45, but stayed the payment of the section 1202.45 fine subject to the successful completion of parole. The court reserved the issue of victim restitution. The court also ordered appellant to pay a $20 court security fee pursuant to section 1465.8, and submit to DNA testing. Finally, the court stated appellant had waived his appellate rights as part of the plea, [i]n other words, there will be no appeal in the findings leading up to the plea, the plea itself, or the sentence from this court.

Notices of Appeal

On September 18, 2006, appellant filed a timely notice of appeal, based upon the sentence or other matters occurring after the plea, specifically the courts denial of his motion to withdraw the plea and to appoint counsel to examine the plea for ineffective assistance.

On September 20, 2006, appellant filed another notice of appeal, based upon the validity of the plea, and requested a certificate of probable cause. In his request, appellant declared he was innocent, and his appointed counsel was not looking out for his best interests, misinformed him about the plea agreement, he did not understand the plea agreement, and counsel was not present for the sentencing hearing. On the same day, the superior court denied the request for a certificate of probable cause.

DISCUSSION

Appellants appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) By letter of January 29, 2007, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so.

We note that appellant waived his appellate rights as part of the plea agreement. (People v. Mumm (2002) 98 Cal.App.4th 812, 815.) Appellant also failed to obtain a certificate of probable cause from the superior court. (In re Chavez (2003) 30 Cal.4th 643, 651; People v. Panizzon (1996) 13 Cal.4th 68, 74-76.) The instant appeal thus should be dismissed. (People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448.)

Nevertheless, in the interests of justice and to forestall any subsequent claim of ineffective assistance of counsel, we have reviewed the record and note the court imposed the upper term of 11 years for voluntary manslaughter as part of the negotiated disposition. Plea bargaining is a judicially and legislatively recognized procedure that provides reciprocal benefits to the People and the defendant.^[3](People v. Masloski (2001) 25 Cal.4th 1212, 1216; People v. Orin (1975) 13 Cal.3d 937, 942-943; Pen. Code,  1192.5.) A judge may not increase a defendants sentence beyond the statutory maximum based upon facts not found by a jury or admitted by a defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303, italics added (Blakely).) The statutory maximum is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Ibid.)

When a defendant enters a plea of guilty or no contest, he or she is admitting the sufficiency of the evidence for the offense. Issues going to guilt or innocence are removed from consideration upon entry of the plea. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) The California Supreme Court observed long ago that when a defendant waives the right to a jury trial, he or she is deemed to have consented to a trial of all the issues in the case before the court sitting without a jury. (People v. Berkutko (1969) 71 Cal.2d 84, 94.) It logically follows that a defendant waiving a right to a jury trial as a precursor to a guilty plea and in exchange for a specified upper term sentence has waived the right to a jury trial on all issues. A sentence within the maximum allowed by facts admitted by a defendant does not violate Blakely. (United States v. Lucca (8th Cir. 2004) 377 F.3d 927, 934; United States v. Saldivar-Trujillo (6th Cir. 2004) 380 F.3d 274, 279.)

We therefore find that the United States Supreme Courts recent decision in Cunningham v. California (2007)549 U.S. __ [127 S.Ct. 856] (Cunningham) is inapplicable to appellants sentence. In light of appellants waiver of a right to a jury trial and his consent to the precise sentence imposed, the constitutionality of his upper term sentence under Cunningham and Blakely is not an issue in the case. Generally, where a defendant has pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that sentence as long as the court did not lack fundamental jurisdiction. (See People v. Hester (2000) 22 Cal.4th 290, 295.)

Appellant agreed he would be sentenced to the stipulated term of 21 years in state prison as a result of his plea and, in fact, he ultimately received that sentence. Appellants plea in effect admitted the existence of facts necessary to impose the upper term on the substantive offense. Appellant therefore waived his right to complain about the upper term as potentially invalid under Blakely and Cunningham because he accepted a negotiated plea bargain for a specified term that allowed him to avoid a potentially harsher sentence. (People v. Hester, supra, 22 Cal.4th at p. 295; see also People v. Buttram (2003) 30 Cal.4th 773, 785-787.) The trial court carefully advised appellant of the consequences of his plea and his constitutional rights. The parties stipulated to a factual basis for appellants plea, as well as to his sentence. Appellant received the stipulated sentence. We find no error in the trial courts advisement of rights, appellants waiver of rights and admissions, or in the trial courts imposition of sentence.^[4]

Our independent review discloses no other reasonably arguable appellate issues. [A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsels professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

DISPOSITION

Given appellants valid waiver of appellate rights, the appeal is dismissed.

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^* Before Harris, Acting P.J., Levy, J. and Cornell, J.

^[1] Given appellants guilty plea, the facts are taken from the preliminary examination, where law enforcement officers testified pursuant to Proposition 115.

^[2] At the preliminary hearing, Detective Alcorn testified he was waiting to receive the DNA results from the various blood evidence from the Department of Justice. Given appellants guilty plea, the forensic evidence is not contained in the instant record.

^[3] Appellant was initially charged with first degree murder, which carried a term of 25 years to life.

^[4] The California Supreme Courts recent opinions in People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 D.A.R. 11041] and People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___ [2007 D.A.R. 11051], do not change our analysis.