Filed 10/15/18 P. v. Florez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH FLOREZ,
Defendant and Appellant.
|
F076053
(Super. Ct. No. VCF241795)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appellant Joseph Florez appeals from the denial of his motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike two or more of his prior strike convictions (Pen. Code, § 667, subds. (b)-(i)).[1] Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we affirm.
FACTUAL AND PROCEDURAL HISTORY
On March 11, 2011, a jury convicted appellant Joseph Florez of being a felon in possession of a firearm (former § 12021, subd. (a)(1)/count 7) and six other counts stemming from a different incident involving a special circumstances double homicide. The jury also found true special allegations that all counts were committed for the benefit of a street gang (§ 186.22, subd. (b)(1)). In a separate proceeding, the court found true allegations that Florez had three prior convictions within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)).
Prior to sentencing, Florez filed a motion for a new trial based on newly discovered evidence. On September 29, 2011, the court granted the motion as to all the counts stemming from the murder charges but denied the motion as to his felon in possession of a firearm count.
On December 5, 2011, the prosecution dismissed, without prejudice, the charges relating to the murder. The court then denied Florez’s Romero motion and sentenced him to an indeterminate term of 28 years to life, 25 years to life on his felon in possession of a firearm conviction and a three-year gang enhancement.
Florez’s three prior strike convictions were based on his 1995 conviction for shooting at an unoccupied vehicle (§ 247, subd. (b)) and his 1996 convictions for assault with a firearm (§ 245, subd. (a)(2)), and conspiracy to commit assault with a firearm (§ 182).
On December 12, 2013, in an unpublished opinion, this court upheld Florez’s conviction and sentence.
On August 19, 2014, Attorney Michael Cross filed a petition for a writ of habeas corpus in the trial court alleging, in pertinent part, that Florez was improperly sentenced to a life term because: (1) the Supreme Court’s decision in People v. Vargas (2014) 59 Cal.4th 635 (Vargas) required that one of Florez’s 1996 convictions be stricken because both convictions were based on the same conduct;[2] (2) Florez’s 1995 conviction was not a strike because there was no evidence he personally used a firearm in committing that offense;[3] and (3) Florez was denied a fair Romero hearing.
On August 26, 2014, the trial court issued an order to show cause denying all the claims except Florez’s claim that he did not receive a fair Romero hearing and it directed the People to file a return addressing whether Flores was entitled to a new Romero hearing.
On September 25, 2014, the People filed a return to the petition contending the evidence supported a finding that Florez’s 1996 convictions for assault with a firearm and conspiracy were each a serious felony and that during the commission of the 1995 shooting at an uninhabited vehicle offense, Florez was the one who discharged the firearm. The People also argued that Vargas did not apply to Florez’s two 1996 convictions because those convictions were based on separate acts against separate victims.
On November 20, 2014, Cross filed a traverse.
On February 17, 2015, the trial court granted Florez’s petition for writ of habeas corpus and set a Romero hearing for April 9, 2015.
On March 17, 2015, the People filed an appeal of the court’s order granting Florez’s petition.
On March 26, 2015, the People filed a petition for writ of prohibition and/or mandate in this court which was denied on April 8, 2015.
On November 29, 2016, this court issued an opinion dismissing the People’s March 17, 2015, appeal concluding that the notice of appeal was not from a final order as required by section 1506.[4]
On May 4, 2017, Cross filed points and authorities in support of Florez’s Romero motion arguing: (1) Florez’s 1995 conviction was not a strike because there was no evidence in the record of conviction that Flores personally used a firearm in committing that offense; and (2) pursuant to Vargas, supra, 59 Cal.4th 635, one of his 1996 convictions had to be stricken because both underlying crimes were “ ‘based on the same act, committed at the same time, against the same victim.’ ” Alternatively, Cross argued that two of the strikes should be stricken pursuant to Romero, supra, 13 Cal.4th 497.
On May 30, 2017, the People filed an opposition to Florez’s Romero motion arguing, in pertinent part, there was sufficient proof that Florez’s 1995 shooting into an unoccupied vehicle conviction was a strike because in the 1996 case in which he pled to assault with a firearm and conspiracy, he also admitted that his 1995 conviction was a strike. The People also argued that Florez’s assault with a firearm conviction and his conspiracy constituted two strikes because the victim of the assault was different from the victim of the conspiracy.
On June 12, 2017, the court heard the motion and took the matter under submission.
On June 26, 2017, the court found that Florez’s 1995 conviction for shooting at an uninhabited vehicle and his 1996 convictions for conspiracy and assault with a firearm all were strikes. It also found that Florez was not entitled to a second hearing on his Romero motion but nevertheless it did not find any extraordinary circumstances that placed Florez outside the ambit of the Three Strikes law.
On July 26, 2017, Florez filed a timely appeal.
Florez’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (Wende, supra, 25 Cal.3d 436.) However, in a letter filed on March 15, 2018, Florez raises the following contentions: (1) his appellate counsel provided ineffective assistance of counsel because counsel did not file a brief that he and Florez had agreed on or provide him with a copy of the Wende brief he filed; (2) his trial counsel was ineffective in presenting his original Romero motion; (3) the evidence was insufficient to prove that his 1995 shooting into an unoccupied vehicle conviction was a strike because there was no evidence that he personally used a firearm; (4) his two 1996 convictions should have resulted in only one strike; (5) arguably, a gang enhancement never attaches to a section 12021 offense because that offense is a passive offense; (6) the felon in possession of a firearm offense was not cross-admissible for purposes of the severance motion that was granted in the trial court; (7) the evidence is insufficient to sustain the gang enhancement; and (8) the murder charge that was dismissed, prejudiced Florez throughout the jury trial in this matter.[5]
Florez’s contention number 1, that appellate counsel provided ineffective representation, is not properly before us because it relies on facts outside the record (People v. Cooks (1983) 141 Cal.App.3d 224, 310) and claims of ineffective assistance of counsel on such matters “generally must be raised in a petition for writ of habeas corpus” (People v. Salcido (2008) 44 Cal.4th 93, 172). Further, Florez should have raised issues Nos. 2, 5, 6, 7, and 8, in his first appeal or the habeas proceeding. Since Florez offers no justification for failing to raise these issues in a timely manner, he has forfeited direct appellate review of them. (People v. Senior (1995) 33 Cal.App.4th 531, 538.)
Moreover, there is no merit to Florez’s contention number 3, i.e., that his 1995 shooting into an uninhabited vehicle conviction was not a strike. In 1996, when he was convicted of conspiracy and assault with a firearm, Florez admitted that his shooting into an uninhabited car conviction was a strike because he personally used a firearm to commit the underlying offense. This admission was binding on Florez with respect to his 2011 conviction for being a felon in possession of a firearm. (People v. Bow (1993) 13 Cal.App.4th 1551, 1558.)
Nor is there any merit to Florez’s contention number 4, i.e., that his 1996 conspiracy and assault with a firearm conviction resulted in only one strike conviction. As noted earlier, the court is required to dismiss one of two prior strike convictions if both convictions are based on a defendant’s commission of the same act and involved the same victim. (Vargas, supra, 59 Cal.4th at p. 645.) Florez’s conspiracy and assault convictions were properly the basis for two strikes because his conspiracy conviction involved a different victim than his assault conviction.
Further, following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
* Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
[1] All further statutory references are to the Penal Code.
[2] Vargas held that when two strikes are based on the defendant’s commission of the same act and involve the same victim, the trial court is required to dismiss one of the defendant’s prior strike convictions. (Vargas, supra, 59 Cal.4th at p. 645.) The factual basis for Florez’s 1996 assault and conspiracy convictions was that Florez conspired with a codefendant to shoot a certain person and drove the codefendant to a residence. At the residence, after the codefendant stuck a semiautomatic handgun out of a car window and pointed it at a different person, Florez said, “that’s not them” and drove away without the codefendant having discharged the handgun.
[3] The prosecutor alleged the offense was a strike pursuant to section 1192.7, subdivision (c)(8) which provides, in pertinent part, that “any felony in which the defendant personally uses a firearm” is a strike.
[4] Section 1506, in pertinent part, provides: “An appeal may be taken to the court of appeal by the people from a final order of a superior court made upon the return of a writ of habeas corpus discharging a defendant or otherwise granting all or any part of the relief sought, in all criminal cases, excepting criminal cases where judgment of death has been rendered, and in such cases to the Supreme Court.”
[5] Florez requests the appointment of another appellate counsel. That request is denied.
