Filed 10/16/17 P. v. Cuevas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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. James A. Kelley, Jr., Judge.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Alfonso Cuevas pled guilty to one felony count of unauthorized use of personal identifying information, a violation of Penal Code[1] section 530.5, subdivision (a), and one misdemeanor count of driving with a blood-alcohol level of 0.08 percent or higher, a violation of Vehicle Code section 23152, subdivision (b). In exchange for his plea, multiple other counts were dismissed and he was to receive a maximum total term of three years. Cuevas was sentenced in accordance with the plea agreement to 18 months in local custody and 18 months on mandatory supervised release. Cuevas appealed and obtained a certificate of probable cause. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

On July 31, 2013, Cuevas was released from prison and placed on postrelease community supervision (PRCS) until September 12, 2016.

Cuevas was stopped at a sobriety checkpoint on August 25, 2013, around 1:52 a.m. Officers could smell the odor of alcohol and saw that Cuevas had bloodshot and watery eyes. Officers asked for his driver’s license, but Cuevas stated he did not have it with him. Cuevas admitted he drank four 24-ounce beers at 10:00 a.m., but denied drinking after that. Cuevas was asked to perform field sobriety tests, which he failed. A breath sample was taken, showing Cuevas with a blood-alcohol level of 0.08 percent.

On September 20, 2013, Cuevas was at Wal-Mart when he was observed by a security officer picking up a shirt, removing the price tag, and then putting on the shirt. Cuevas proceeded to exit the Wal-Mart without paying for the shirt. He was stopped outside the store. Cuevas admitted taking merchandise without paying.

Sanger police had been called to the Wal-Mart. Cuevas identified himself as Miguel Gil Cuevas, with a September 1977 birth date; he had no identification on him. Officers conducted a records check under that name and date of birth; no match was found. Cuevas then admitted giving a false name and claimed his true name was Alfonso Miguel Cuevas, with the same date of birth. A records search for this combination returned no match.

Cuevas was taken into custody and fingerprinted. The live scan fingerprint process revealed Cuevas’s true name was Alfonso Miguel Cuevas, but his date of birth was in February 1974 and he was on PRCS.

On November 25, 2013, Cuevas was charged in counts 1 and 3 with unauthorized use of personal identifying information (§ 530.5, subd. (a)), in count 2 with petty theft (§ 484, subd. (a)), in count 4 with false impersonation (§ 529), in count 5 with forgery (§ 470, subd. (a)), in count 6 with driving with a blood-alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subd. (b)), in count 7 with driving under the influence (id., § 23152, subd. (a)), and in count 8 with driving with a suspended license (id., § 14601.2, subd. (a)). It also was alleged that Cuevas had served four prior prison terms within the meaning of section 667.5, subdivision (b).

Cuevas apparently was released from custody at some point, but failed to appear at the December 16, 2013, arraignment and a bench warrant was issued. The minutes show an arraignment eventually was held on July 26, 2016, and the public defender was appointed to represent Cuevas. Cuevas entered a plea of not guilty on all counts and denied all enhancements.

At a hearing on August 1, 2016, the public defender declared a conflict and was relieved as counsel; conflict counsel Ciummo and Associates was appointed to represent Cuevas.

On August 8, 2016, Cuevas signed both a felony and a misdemeanor advisement of rights and plea forms. In the plea forms, Cuevas agreed to plead guilty to count 1, a felony violation of section 530.5, subdivision (a), and count 6, a misdemeanor violation of Vehicle Code section 23152, subdivision (b). In exchange for his plea, all other counts and enhancements would be dismissed. The plea agreement also provided for a maximum of three years in prison on the felony and one year of jail time on the misdemeanor.

On the plea forms, Cuevas initialed each of the boxes indicating he understood and waived his constitutional rights. He also initialed the box indicating he was freely and voluntarily entering into the plea agreement. Cuevas also initialed that he understood the consequences of his plea.

As to the felony plea form, Cuevas signed the form under penalty of perjury beneath a statement that he had read and understood each item on the form. Defense counsel also signed the felony plea form, stating he had discussed the plea and the consequences of the plea with his client, answered all of his client’s questions, and concurred with the plea.

Cuevas also signed the misdemeanor plea form under penalty of perjury, stating he read and understood the form. Defense counsel also signed a statement on the misdemeanor form, indicating he had discussed the case and consequences of the plea with his client, answered all of his client’s questions, and concurred with the plea.

At the change of plea hearing on August 8, 2016, defense counsel summarized the terms of the plea agreement and stated Cuevas wished to change his plea. The trial court asked Cuevas if that was correct and Cuevas responded, “Yes.” The trial court indicated it would “split the term,” with half the time in custody and half on mandatory supervised release.

The trial court asked Cuevas if “you had enough time to discuss your options with your attorney,” to which Cuevas responded, “Yes.” The trial court then proceeded to go through the plea forms and verify that Cuevas went over the forms with his attorney, that he understood the forms, the consequences of his pleas, and his constitutional rights and was waiving those rights. The trial court then asked if Cuevas had any questions, to which he responded “No.”

After this exchange, the trial court accepted Cuevas’s pleas of guilty to a felony violation of section 530.5, subdivision (a), and a misdemeanor violation of Vehicle Code section 23152, subdivision (b).[2] The parties stipulated that the police reports provided a factual basis for the pleas. The other counts and enhancements were dismissed.

The trial court found that Cuevas knowingly, intelligently, and expressly waived his constitutional rights and freely and voluntarily entered the plea. The trial court took judicial notice of the pleas just entered by Cuevas and found him to be in violation of PRCS. Sentencing on the case for which he was on PRCS was ordered combined with the sentencing on the current charges.

The probation report reflected that Cuevas had a lengthy criminal record, including numerous convictions as an adult as well as several juvenile offenses. At the September 20, 2016, sentencing hearing, updated credits of 62 actual and 62 conduct, for a total of 124 days, were provided by the probation department.

The trial court noted Cuevas had seven prior felony convictions and five violations of either parole or PRCS. On the felony charge, a term of three years was imposed, 18 months to be served in custody and 18 months on PRCS. On the misdemeanor, the trial court gave credit for time served. On the case for which Cuevas had been on PRCS, the trial court ordered he serve the balance of that time after his release from custody. Various fines and fees were imposed.

The abstract of judgment filed September 20, 2016, accurately reflects the trial court’s oral pronouncement of sentence.

An error in the minute order for the September 20, 2016, sentencing hearing caused Cuevas erroneously to be released from custody. A bench warrant was issued to return Cuevas to custody.

A notice of appeal and request for certificate of probable cause was signed by Cuevas on November 14, 2016. The certificate of probable cause was issued and the notice of appeal filed on November 21, 2016.[3]

DISCUSSION

Appellate counsel field a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on March 28, 2017. On March 29, 2017, this court issued its letter to Cuevas inviting supplemental briefing. No supplemental brief was filed.

In his request for a certificate of probable cause, Cuevas asserts he received ineffective assistance of counsel and he was supposed, “to be doing 9 months in custody.” The record does not support these assertions.

The felony plea form signed by Cuevas called for a three-year term in exchange for his plea. The reporter’s transcript of the plea hearing clearly shows the People’s offer was for a three-year term; the trial court agreed to split the three years, with 18 months in custody and 18 months on PRCS. Cuevas affirmatively represented to the trial court that he understood the indicated sentence.

Nothing in the record supports a claim of ineffective assistance of counsel. Cuevas has a lengthy criminal record. Defense counsel negotiated a favorable plea and sentence, with dismissal of numerous charges and all prior enhancements, and limited time in custody. If Cuevas possesses evidence of ineffective assistance of counsel outside the record, his claim is more appropriately presented by way of a petition for writ of habeas corpus. (People v. Johnson (2016) 62 Cal.4th 600, 654.)

After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.