Filed 10/9/13 P. v. Villachana 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                     F065994

                   v.                                                    (Super. Ct. No. BF135522A)

LUIS VILLACHANA,                                                                     OPINION

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
         William D. Farber, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.


                                                        -ooOoo-

*        Before Wiseman, Acting P.J., Kane, J., and Detjen, J.
          On August 20, 2012, pursuant to a plea agreement, appellant, Luis Villachana,
pleaded no contest to one count of felony willful infliction of corporal injury on a spouse
or cohabitant resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)). On
September 18, 2012, appellant filed a notice of motion and motion to withdraw his plea.
On October 4, 2012, the court, following a hearing, denied the motion, and, consistent
with the plea agreement, suspended imposition of sentence, placed appellant on three
years’ felony probation and ordered that he serve the first 120 days of his probationary
period in county jail. The instant appeal followed. The court granted appellant’s request
for a certificate of probable cause (Pen. Code, § 1237.5).
          Appellant’s appointed appellate counsel has filed an opening brief which
summarizes the pertinent facts, with citations to the record, raises no issues, and asks that
this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
Appellant has not responded to this court’s invitation to submit additional briefing. We
affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
Facts
          Appellant was Tandy Martens’s boyfriend from August 2007 until approximately
January 2011.1 On January 19, 2011, after getting off work at approximately 5:30 p.m.,
Martens drove home. Appellant was there when she arrived, and the two drove to a
restaurant and purchased some take-out food. As they were driving home, appellant
became “[v]erbally abusive” toward Martens.
          The verbal abuse continued when the couple returned home. At one point,
appellant followed Martens into the bedroom, where he struck Martens with an open


1      Our factual summary of the instant offense is taken from Martens’s testimony at
the preliminary hearing.


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hand “really hard” on the side of the head. Appellant “kept hitting” Martens in the head
and “kept spitting in [her] face.” Next, appellant pushed Martens down on the bed, got
on top of her, put both his hands around her neck and choked her until she passed out.
Eventually, Martens regained consciousness and ran to a neighbor’s house.
Motion to Withdraw Plea
       On August 20, 2012, prior to entering his plea, appellant signed an
“ADVISEMENT OF RIGHTS, WAIVER, AND PLEA FORM FOR FELONIES” (plea
waiver form). Later that day, in court, he stated, in response to questions from the court,
that his attorney had “clearly” gone over the plea waiver form with him and explained to
him his rights, that he had no questions for his attorney or the court, and that “We are
clear.” The court found that appellant had “knowingly, intelligently, freely and
voluntarily waived his rights,” and accepted appellant’s plea.
       At the hearing on his motion to withdraw his plea, appellant testified to the
following: The police came to his home at 4:18 a.m. on August 20, 2012, and arrested
him. Prior to his arrest, appellant, over a three-hour period, drank “maybe 15
Budweisers” and one-third of a bottle of vodka, and smoked approximately 3.5 grams of
marijuana. He had his last drink at approximately 1:49 a.m. and he last smoked
marijuana at 2:40 a.m. He was brought into court later that morning, at which time he
entered his plea. At the time of his plea, he was under the influence of alcohol and
marijuana. He was “totally discombobulated” and he “didn’t know what was going on.”
       The court found appellant not credible and denied the motion.
                                      DISCUSSION
       Following independent review of the record, we have concluded that no
reasonably arguable legal or factual issues exist.
                                      DISPOSITION
       The judgment is affirmed.

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