P. v. Murrietta
Filed 11/4/13 P. v. Murrietta CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
MODESTO
MURRIETTA,
Defendant and
Appellant.
2d Crim. No.
B244559
(Super. Ct.
Nos. LA068321, LA068609 )
(Los
Angeles County)
Modesto Murrietta
appeals from the judgment after conviction by plea of no contest to
Superior Court Case No. LA068609. (Pen.
Code, § 211.) Murrietta admitted
that he suffered a prior prison sentence.
(§ 667.5, subd. (b).) The trial
court dismissed charges against Murrietta in an unrelated consolidated case
(No. LA068321) and sentenced Murrietta to three years in state prison
consisting of a two-year low term for the robbery and a one-year term for the enhancement.
We appointed counsel to
represent Murrietta on this appeal.
After counsel's examination of the record, she filed an
raised. We advised appellant that he had
30 days in which to personally submit any contentions that he wished to raise
on appeal. He filed a timely supplemental
letter brief challenging the sentence and the validity of the plea on the
ground that his attorney rendered ineffective assistance of counsel.
A loss prevention
officer testified at the preliminary
hearing that Murrietta entered a Rite-Aid store, put a cell phone charger
in his pocket, and left without paying. When
the loss prevention officer confronted Murrietta outside, Murrietta pointed a
pocket knife at him and told him not to get too close.
In an unrelated case,
Murrietta was charged with committing four felonies against another
victim: first degree burglary (§ 459);
assault with a firearm (§ 245, subd. (a)(2)); assault with a deadly weapon (§
245, subd. (a)(1)); and making criminal threats (§ 422.). (Los Angeles
Superior Court Case No. LA068321.) The
trial court ordered the two cases consolidated.
Before the cases were
set for trial, Murrietta asked the court for permission to represent himself
because he had a "gut" feeling and felt the case was "snowballing."
The trial court granted his request. At Murrietta's next appearance, he asked the
court to reappoint the public defender.
The court reappointed the public defender.
Murrietta pled no
contest to the robbery in case number LA068609.
Pursuant to a plea agreement, the trial court dismissed an allegation
that Murrietta committed the robbery with personal use of a deadly weapon (§ 12022,
subd. (b)(1)) and dismissed the four felony counts in case number LA068321.
Before sentencing,
Murrietta moved to withdraw his plea on the ground that it was coerced. He testified that he felt pressured because the
prosecutor told him the deal would be "off the table" if he did not take
it and because Murrietta's own attorney told him to take the deal. The trial court denied the motion. After entering judgment, the trial court
denied Murrietta's request for a certificate of probable cause.
Murrietta has not established
either that his counsel's representation fell below an objective standard of
reasonableness or a reasonable probability that he would have obtained a more
favorable result but for counsel's deficient performance. (Strickland
v. Washington (1984) 466 U.S. 668, 688, 694.) We presume counsel's conduct fell within the
wide range of reasonable professional assistance, and we defer to reasonable
tactical decisions. (
979.) Murrietta contends that his
attorney should have contacted favorable witnesses and should have presented a
surveillance video in court to show he did not use a knife. Murrietta waived the right to present
evidence. Moreover, he cannot establish
prejudice because the knife allegation was dismissed and his sentence was not
based on use of a weapon.
The record does not
support Murrietta's contention that his attorney "pressured" him into
the plea agreement while he was under "a diminished capacity of
prescription medication." Murrietta
actively and coherently joined in the negotiations on the record. He told the court that he was entering into
the agreement freely and voluntarily. Murrietta
has not established deficient performance and it is not reasonably probably
that he would have obtained a more favorable outcome if he had not accepted the
plea agreement. He had suffered three
prior felonies and was facing up to 15 years in state prison but received only
a three-year term under the agreement.
We have reviewed the
entire record and are satisfied that appellant's attorney has fully complied
with her responsibilities and that no arguable issues exist. (People
v. Wende (1979) 25 Cal.3d 436, 443; People
v. Kelly ( 2006) 40 Cal.4th 106, 126.)
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Martin
L. Herscovitz, Judge
Superior
Court County
of Los Angeles
______________________________
Lise M. Breakey, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff
and Respondent.
