P. v. Luna
Filed 8/10/07 P. v. Luna CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. GERARDO LUNA, Defendant and Appellant. | B195510 (Los Angeles County Super. Ct. No. SA058231) |
APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Affirmed.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Gerardo Luna appeals from a judgment entered following his no contest plea to assault with a firearm, count 2 (Pen. Code, 245, subd. (a)(2)), his admission that the offense was committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1)(C), that during the commission of the offense he personally used a handgun within the meaning of Penal Code section 12022.5, subdivision (a) and personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a).[1] He was sentenced to prison for a total of 18 years, consisting of the upper term of four years for the base term, plus a consecutive middle term of four years for the gun use enhancement, plus a consecutive term of 10 years for the gang enhancement. For purposes of sentencing, the great bodily injury enhancement was stricken. Appellants notice of appeal states his appeal is based on the sentence or other matters occurring after the plea and that his appeal challenges the validity of the plea or admission. He requested but was denied a certificate of probable cause.[2]
After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On May 1, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.
On May 17, 2007, he filed a request for new appellate counsel or an extension of time to file an opening brief. On May 24, 2007, his request for new counsel was denied and the time to file a supplemental brief was extended to June 8, 2007.
On June 8, 2007, he filed a supplemental brief stating that when he pled to the charges he did not know what he was doing, that he was misinformed by his counsel and that his counsel took advantage of him.
We have examined the entire record and are satisfied that no arguable issues exist. Issues going to the validity of appellants plea are not cognizable on appeal without a certificate of probable cause. (See People v. Panizzon (1996) 13 Cal.4th 68, 76.) Further, on this record, appellant has failed to demonstrate ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668.) Appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.
Publication Courtesy of California attorney referral.
Analysis and review provided by Vista Property line attorney.
[1] Pursuant to his negotiated plea, charges of attempted willful, deliberate, premeditated murder, count 1 (Pen. Code, 664/187(a)), and mayhem, count 4 (Pen. Code, 203), were dismissed. The charge of second degree robbery, count 3 (Pen. Code, 211), was dismissed pursuant to Penal Code section 995.
The evidence at the preliminary hearing established in essence that on November 12, 2004, appellant approached a group of people attending a party in Hawthorne, identified himself as a gang member, and asked whether they were gang members. When Salvador Ramirez identified himself as a rival gang member, using a sawed-off shotgun, appellant shot Ramirez in the thigh.
[2] In his request for certificate of probable cause, appellant stated he was forced into a plea bargain because the trial court erroneously denied defense motions and because he was misinformed by defense counsel. Additionally, he claimed the trial court imposed an illegal 10-year gang enhancement. He also asserted he now possesses a meritorious defense, namely, that he suffers from a psychological condition and was not able to form malice at the time the incident occurred.
