P. v. Mota-Rivera

Filed 5/15/06  P. v. Mota-Rivera CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Kern County.  Arthur E. Wallace, Judge.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

            Appellant, Jose Luis Mota-Rivera, pled guilty on July 23, 2004, to one count of premeditated murder (Pen. Code, §  187, subd. (a)).^[1]  In exchange for appellant's plea, a count alleging battery upon a spouse resulting in a traumatic condition (§  273.5, subd. (a)) was dismissed.  Allegations that appellant personally discharged a firearm during the commission of the murder (§  12022.53, subd. (c)), used a firearm (Pen. Code, §  12022.5, subd. (a)), and personally used a deadly weapon (§ 12022, subd. (b)(1)) were also dismissed.^[2] 

            On September 2, 2004, the trial court denied appellant's motion to withdraw his plea.  On September 9, 2004, the court sentenced appellant to prison for a term of 25 years to life.  Appellant obtained a certificate of probable cause.  On appeal, appellant contends the trial court erred in denying his motion to withdraw his plea.^[3]

PROCEEDINGS

            During the change of plea proceeding, the trial court explained to appellant that according to the terms of the plea agreement, he would admit the first degree murder allegation in exchange for the dismissal of the remaining count and gun use allegations.  The court explained to appellant that he would face â€