Filed 3/23/22 P. v. Ayala CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
| THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND AYALA,
Defendant and Appellant.
| B312796
(Los Angeles County Super. Ct. No. NA107828) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard M. Goul, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Raymond Ayala appeals from the judgment entered after he pleaded no contest to one count of attempted murder (Pen. Code,[1] §§ 664, 187, subd. (a)) with a firearm enhancement (§ 12022.53, subd. (c)). We affirm.
On November 7, 2017, Ayala was the passenger in a car driven by his codefendant Christopher Aguilera. Both Ayala and Aguilera were documented gang members. The car stopped on the street near where two men were standing, and Ayala called out the name of his gang. Ayala then fired multiple shots at the men from the front passenger seat of the vehicle.
Shortly after the shooting, the police conducted a traffic stop of the car and detained Ayala and Aguilera. A firearm and a spent casing were recovered from inside the vehicle. The police also obtained video from a nearby surveillance camera that captured the shooting. In a field show-up, one of the victims identified Ayala as the shooter.
In a first amended information filed on June 28, 2018, Ayala and Aguilera were charged with two counts of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)). As to each count, it was alleged that Ayala personally used and discharged a firearm (§ 12022.53, subds. (b), (c)), and that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). It also was alleged that Ayala had served four prior prison terms for felony offenses within the meaning of section 667.5, subdivision (b).
On May 28, 2019, pursuant to a negotiated disposition, Ayala pleaded no contest to one count of attempted murder (§§ 664, 187, subd. (a)), to the allegation that he had personally discharged a firearm in the commission of that offense (§ 12022.53, subd. (c)), and to the allegations that he had served four prior prison terms (§ 667.5, subd. (b)).
On August 19, 2019, the date of the sentencing hearing, Ayala made both a motion to replace his appointed counsel under People v. Marsden (1970) 2 Cal.3d 118, and a motion to withdraw his plea. Following a hearing, the trial court denied the Marsden motion. The court then turned to the motion to withdraw the plea. Because Ayala indicated that his request to withdraw his plea was based, at least in part, on his counsel’s performance, the court appointed different counsel to represent him.
On March 22, 2021, Ayala’s new counsel filed a written motion to withdraw the plea based on the alleged ineffective assistance of prior counsel. The People filed an opposition to the motion.
On April 6, 2021, following a hearing, the trial court denied Ayala’s motion to withdraw his plea. The court then proceeded to sentencing. Pursuant to the plea agreement, the court sentenced Ayala to an aggregate term of 29 years in state prison, consisting of nine years on the attempted murder count and 20 years on the firearm enhancement. The court struck the prior prison term enhancements pursuant to the amendments to section 667.5, subdivision (b). The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and $30 court facilities assessment (Gov. Code, § 70373). Ayala was awarded 1,434 days of total custody credits.
On April 9, 2021, Ayala filed a notice of appeal. On the pre-printed notice form, Ayala checked a box indicating that the “appeal challenges the validity of the plea or admission.” Ayala also requested a certificate of probable cause, stating that he believed he was “mis-advised by [the] attorney that represented him” at the time of the plea, and that “his prior attorney did not adequately prepare for and investigate the facts alleged for trial.”
The trial court denied Ayala’s request for a certificate of probable cause. As a result, on July 12, 2021, our Administrative Presiding Justice issued an order that this appeal is limited to issues that do not require a certificate of probable cause.
We appointed counsel to represent Ayala on appeal. After an examination of the record, counsel filed an opening brief which raised no issues and requested this court conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. On December 14, 2021, we advised Ayala that he had 30 days in which to submit a supplemental brief or letter setting forth any contentions or arguments he wished for this court to consider. Ayala did not submit a supplemental brief
A criminal defendant who appeals following a plea of no contest or guilty without a certificate of probable cause may only challenge the denial of a motion to suppress evidence or assert grounds arising after the entry of the plea that do not affect the plea’s validity. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).) A defendant must obtain a certificate of probable cause in order to appeal the denial of a motion to withdraw a plea, even though such a motion involves a proceeding that occurs after the plea. (People v. Johnson (2009) 47 Cal.4th 668, 679.) A certificate of probable cause is likewise required when a defendant claims a plea was induced by misrepresentations (People v. Panizzon (1996) 13 Cal.4th 68, 76), or was the result of ineffective assistance of counsel (In re Chavez (2003) 30 Cal.4th 643, 651).
Accordingly, to the extent Ayala is challenging the validity of his plea, his appeal is inoperative. (People v. Mendez (1999) 19 Cal.4th 1084, 1096.) With respect to sentencing or postplea issues that do not in substance challenge the validity of the plea itself, we have examined the record, and are satisfied Ayala’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 118–119; People v. Wende, supra, 25 Cal.3d at pp. 441–442.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LIPNER, J.*
We concur:
EDMON, P. J.
LAVIN, J.
[1] Unless otherwise stated, all further statutory references are to the Penal Code.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
