P. v. Magana
Filed 8/30/06 P. v. Magana CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE
| THE PEOPLE, Plaintiff and Respondent, v. DANIEL LUIS MAGANA, JR., Defendant and Appellant. | A112793 (San Mateo County Super. Ct. No. SC59595) |
Defendant Daniel Luis Magana, Jr., appeals from a judgment convicting him of assault with deadly weapons and/or with force likely to produce great bodily injury. Defendant's attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting this court to make an independent review of the record. We have done so and, despite one conspicuous mistake in the proceedings below, we find no arguable basis for reversal and shall therefore affirm the judgment.
Factual and Procedural History
On August 26, 2005, defendant along with two others[1] was charged with unlawfully participating in a criminal street gang (Pen. Code,[2] § 186.22, subd. (a) – count one); assault with a deadly weapon (hands and feet) and/or with force likely to produce great bodily injury upon Mary Vasquez (§ 245, subd. (a)(1) – count two); assault with a deadly weapon (hammer) and/or with force likely to produce great bodily injury upon Mary Vasquez (§ 245, subd. (a)(1) – count three); assault with a deadly weapon (hands and feet) and/or with force likely to produce great bodily injury against a second victim (§ 245, subd. (a)(1) – count four); assault with a deadly weapon (hammer) and/or with force likely to produce great bodily injury against the second victim (§ 245, subd. (a)(1) – count five); assault with a deadly weapon (hands and feet) and/or with force likely to produce great bodily injury against a third victim (§ 245, subd. (a)(1) – count six). With regard to the assault with a hammer alleged in count three, the complaint alleged that defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).) The complaint also alleges that defendant committed each of the assault offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); that all of the offenses were serious felonies (§ 1192.7, subd. (c)(8), (23), & (28)); and that defendant had suffered a prior strike (§ 1170.12, subd. (c)(1)).
Defendant initially pled not guilty to all charges, but on December 28, 2005, filed a motion to change his plea. Pursuant to a negotiated disposition, defendant agreed to plead no contest to the assault with a hammer alleged in count three, along with the corresponding enhancement allegations and the prior strike allegation in exchange for a nine-year prison sentence. At the hearing held that same day, however, defendant pled no contest â€
