P. v. Mendez-Vicente

Filed 8/3/06 P. v. Mendez-Vicente CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Counsel for appellant Marvin Mendez-Vicente (appellant) has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436.

A criminal complaint was filed by the Marin County District Attorney's Office on January 7, 2005, charging appellant with one count of assault with a deadly weapon (Pen. Code, § 245, subdivision (a)(1)^[1], which was also alleged to be a serious and/or violent felony within the meaning of sections 1192.7, subdivision (c)(23), and 1170.12, subdivisions (a)-(c).

On February 28, 2005, pursuant to a negotiated plea agreement, a first amended complaint (FAC) was filed charging appellant with one count of assault by means likely to cause great bodily injury (§ 245, subd. (a)(1)). The serious and violent felony allegations were dropped from this amended pleading. On that same day, appellant initialed and signed a change of plea form by which he pleaded guilty to the count alleged in the FAC. In doing so, appellant acknowledged the various and numerous constitutional rights he was waiving by pleading guilty including the rights to a public and speedy jury trial, against self-incrimination, to produce witnesses and evidence, of confrontation and cross-examination of witnesses against him, and the right to appeal except as to sentencing errors. He also acknowledged that his guilty plea exposed him to a state prison sentence of two, three, or four years, and that he could be deported and excluded from admission to the United States and denied naturalization.

A hearing was held that day, at which time appellant entered his plea. He was represented by counsel, and had the assistance of a Spanish language interpreter. Each of the waivers of rights contained in the guilty plea form appellant had signed earlier were recited again in open court, and appellant indicated that in pleading guilty he was voluntarily waiving these rights. Appellant also acknowledged that he had sufficient time to discuss the charges against him and his possible defenses with his attorney. Defense counsel stipulated that there existed a factual basis for the plea. A waiver of any rights under Blakeley v. Washington (2004) 542 U.S. 296 was also taken at the hearing, and appellant waived his right to be sentenced by the same judge who took his plea (People v. Arbuckle (1978) 22 Cal.3d 749).

Before sentencing occurred, appellant filed a motion to withdraw his guilty plea on the grounds that, prior to his plea, his attorney failed to obtain statements given by two companions of appellant on the night of the offense to police which appellant claims were potentially exculpatory, and because he failed to understand fully the immigration consequences of pleading guilty.

The motion was opposed by the prosecutor, who noted that the admonition of immigration consequences contained on the standard Marin County guilty plea form appellant had signed, as well as the oral admonition given to him in open court at the time the plea was taken, tracked exactly the statutory language required under section 1016.5. As to the potential witnesses, the prosecutor pointed out that, in agreeing to the factual basis for his plea, appellant admitted that on December 25, 2004, he was involved in an altercation with another person during which he hit that person in the head with a beer bottle.

A hearing on the motion was held on July 21, 2005. Appellant reiterated that the advisement concerning immigration consequences was that he might be deported, but he later learned from the probation department that his guilty plea would make his deportation mandatory. The court denied the motion, noting first that compliance with section 1016.5 concerning the potential for adverse immigration consequences constituted an adequate admonition. Furthermore, as to the two potential witnesses, the court found that appellant knew the identity of the persons and that he failed to provide counsel with information as to their possible whereabouts. The court also noted the absence of any evidence that appellant was prejudiced by not having more information concerning such persons before agreeing to his guilty plea.

A motion to reconsider appellant's motion to withdraw his plea was filed on August 12. In it, appellant emphasized that his earlier motion was based largely on a claim of ineffective assistance of counsel in that counsel failed: (1) to advise appellant that by pleading guilty his deportation was mandatory under applicable federal law, and (2) to conduct an adequate investigation into the existence of potentially exculpatory evidence.

A hearing on appellant's motion to reconsider was held on August 29, 2005. At the hearing, defense counsel focused his argument on prior counsel's failure to conduct an adequate investigation in not learning the identity of, and thereafter contacting, the witnesses who were with appellant at the time of the incident and who allegedly would provide exculpatory evidence. Counsel argued the importance of this information because appellant was too drunk that night â€