Filed 3/25/16 P. v. Urena CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H042631
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1084548)

         v.

DAVID ANDREW URENA,

         Defendant and Appellant.


         Pursuant to a negotiated plea bargain, David Andrew Urena (defendant) pleaded
no contest to voluntary manslaughter (Pen. Code, § 192, subd. (a))1 (count 1) and two
counts of assault with a firearm (§ 245, subd. (a)(2)) (counts 2 & 3). He admitted a gang
enhancement allegation as to each count. Defendant filed a notice of appeal from the
judgment of conviction, challenging the validity of his pleas. The trial court granted his
request for a certificate of probable cause based on his claim that the trial court
erroneously denied his motion to withdraw his pleas, “submitted on grounds of
Innocence.” (See § 1237.5; Cal. Rules of Court, rule 8.304(b)(1).)
         Defendant’s appointed counsel filed an appellate opening brief that containes a
statement of the facts but raises no issues. Counsel requests that this court independently
review the record on appeal under People v. Wende (1979) 25 Cal.3d 436 (Wende) and
Anders v. California (1967) 386 U.S. 738, 744 (Anders). Counsel declares that he
advised defendant, in a writing sent to his last known address, that a “Wende/Anders
         1
             All further statutory references are to the Penal Code unless otherwise specified.
brief” would be filed in this case and that “he may personally file a supplemental brief in
this case raising any issues which he wishes to call to the Court’s attention.”
       This court sent a letter, dated November 30, 2015, to defendant informing him that
his appointed appellate counsel had filed an opening brief that did not raise any specific
issues and that this court is required to examine the entire appellate record to determine
whether there is any arguable issue. The letter advised defendant of his right to submit
any argument that he wished to make for himself within 30 days after the date of the
letter. In response to this court’s letter, defendant requested an extension of time to file a
supplemental brief, which this court granted. The time has now elapsed, and this court
has not received a response from defendant.
       We provide a brief description of the facts and procedural history of the case.
(See People v. Kelly (2006) 40 Cal.4th 106, 110, 124 (Kelly).)
                                               I
                                            Facts
       The following facts were taken from the probation report. On June 25, 2010, at
approximately 5:57 a.m., San Jose Police received a call that two persons had been shot
and were lying in a driveway. Police officers responding to the scene found C.L. and
I.C., who both had been shot.2 C.L. had been shot four times, in the arm, neck (severing
the spinal column), head, and back. I.C. had been shot once in the abdomen. C.L. was
pronounced dead at Valley Medical Center. I.C. underwent emergency surgery, and he
required a colostomy bag.




       2
          Defendant was 16 years old at the time of the offenses. It is not clear whether
the victims were also minors. Out of an abundance of caution, we refer to the victims by
their initials.


                                              2
       A third victim, C.C., who had fled for his safety, was subsequently discovered. He
had been shot twice, in the torso and hip. One bullet had lodged in his groin, and it was
not removed.
       Codefendant Joseph Antuna (Antuna), the victims, and others (including Antuna’s
brother) had met at a Jack in the Box, and they had subsequently gone to I.C.’s home to
play pool. Antuna left to buy cigarettes, and he returned with defendant. C.C.
recognized defendant, whom C.C. believed was involved in the stabbing of a friend.
They all left the garage to talk in the driveway, and it was tense. Antuna pulled out a gun
and shot C.L. and C.C. Someone shot at I.C., and then defendant shot at I.C. as he was
lying on the ground. Defendant, Antuna, and Antuna’s brother fled the scene. Text
messages between Antuna and defendant’s cousins placed defendant and Antuna together
after the shooting at approximately 6:30 a.m. the same day.
       It was determined that a .22-caliber handgun and a .38-caliber handgun were used
in the shooting. A .22-caliber handgun was used to kill C.L.
       Antuna was arrested while fleeing his residence, and a poem pertaining to gang
activity was found on him. A .22-caliber handgun and four other guns were recovered
during a search of the residence of Antuna’s brother. In a search of defendant’s
residence, a partially empty box of .38-caliber ammunition and El Hoyo Palmas
(Norteño) paraphernalia were discovered. The victims were part of the West Side Mob
while defendant and Antuna were members of El Hoyo Palmas; the gangs were rivals
within the Northern Structure (Norteños).
                                            II
                                   Procedural History
       An information, filed February 10, 2011, charged defendant and two codefendants
with murder (§ 187) (count 1) and two counts of attempted murder (§§ 187, 189, 664,
subd. (a)) (counts 2 & 3). The information set forth a number of allegations, including



                                             3
gang enhancement allegations as to each count and allegations that the attempted murders
were willful, deliberate, and premeditated.
       A plea bargain was reached and placed on the record on February 13, 2015. It
provided that, in exchange for a total sentence of 21 years, defendant would plead no
contest to counts 4 to 6 of an amended information, admit gang enhancements, and waive
all his credits through that day. Count 4 of the amended information charged defendant
with voluntary manslaughter of C.L. (§ 192, subd. (a)). Count 5 of the amended
information charged him with assault with a firearm, namely a handgun, upon I.C.
(§ 245, subd. (a)(2)). Count 6 of the amended information charged him with assault with
a firearm, namely a handgun, upon C.C. (§ 245, subd. (a)(2)). A gang enhancement
allegation under section 186.22, subdivision (b)(1)(C), was attached to count 4, and gang
enhancement allegations under section 186.22, subdivision (b)(1)(B), were attached to
counts 5 and 6.
       Defendant initialed and signed a written advisement of rights, waiver and plea
form (plea form). At the plea hearing, defendant confirmed that he had the opportunity to
review each of the initialed items on the plea form with his attorney, and he had
discussed them with his attorney.
       The plea form reflected that, before entering the pleas, he had a full opportunity to
discuss with his attorney the facts of his case, the elements of the charged offenses and
the enhancements, any defenses that he might have, his constitutional rights and waiver
of those rights, the pleas’ consequences, including any applicable immigration
consequences, and anything else he thought was important to his case. It also reflected
that defendant agreed that there was a factual basis for his pleas based on his discussions
with his attorney about the elements of the crime and any defenses he might have. The
plea form further reflected, among other things, that defendant understood potential
immigration consequences if he was not a citizen, the lifetime prohibitions concerning



                                              4
firearms and ammunition applicable to him, and the requirement that he register as a gang
member.
       The court reiterated the constitutional rights that defendant was giving up by
pleading no contest to the charges, and defendant indicated that he understood each of
them and that he also understood that a plea of no contest meant that he was giving up
those rights. Defendant’s counsel confirmed that he had advised defendant of any
immigration consequences of his pleas.
       Following the plea colloquy, defendant pleaded no contest to counts 4 through 6
and admitted the gang enhancement allegations. Defendant’s counsel confirmed that he
had an adequate opportunity to discuss with defendant the nature of the charges, any
defenses to the charges, and the maximum and minimum penalties associated with the
charges.
       The prosecutor stated that defendant had been asked to waive all his appellate
rights. The court stated that it understood that, as part of the negotiated disposition,
defendant was agreeing to give up his right of appeal. It explained that a claim of
ineffective assistance of counsel was excluded from such waiver. The court then asked,
“So other than that issue, do you give up your right to appeal through today’s date?”
Defendant replied, “Yes, I do.”
       When defendant was interviewed for the probation report for sentencing,
defendant stated that he intended to file a motion to withdraw his plea. Defendant felt
that it had been a mistake to take the plea bargain. According to the report, he said, “I
know I’m not innocent in everything, but this doesn’t feel right.”
       On May 20, 2015, defendant filed a motion to withdraw his plea. Without
explanation or new evidence, defendant asserted that he was innocent of the charges to
which he had pleaded on February 13, 2015. He believed that, in accepting the
negotiated disposition, he had made one of the greatest errors that he had ever made and
he had made an “injurious mistake.” The trial court found there was no good cause for

                                              5
granting the motion, and it denied the motion.3 It then sentenced defendant in accordance
with the negotiated plea agreement.
       Defendant was sentenced to a total term of 21 years, which consisted of an upper
term of 11 years for voluntary manslaughter (§ 192, subd. (a)), two concurrent three-year
terms for the assaults with a firearm (§ 245, subd. (a)(2)), and a 10-year gang
enhancement term (§ 186.22, subd. (b)(1)(C)). The punishment for each enhancement
under section 186.22, subdivision (b)(1)(B), was stricken.
       The trial court awarded defendant total credit of 113 days, consisting of 99 actual
days of custody plus 14 days credit (§ 2933.1).
       Defendant was ordered to pay restitution as determined by the court. At the time
of sentencing, the court ordered defendant to pay $7,500 to the Victim Compensation and
Government Claims Board. As to the deceased victim, the trial court ordered defendant
to pay $10,000 in restitution. Defendant waived his right to a hearing to dispute those
amounts.
       The trial court imposed a restitution fine of $200 (§ 1202.4, subd. (b)), and it
imposed and suspended a parole revocation restitution fine of $200 (§ 1202.45).
Additionally, the court imposed the following: a court security fee (properly referred to as
a “court operations” assessment) of $120 (§ 1465.8); a criminal conviction assessment
(properly referred to a “court facilities” assessment) of $90 (Gov. Code, § 70373); and a

       3
         “Pleas are not set aside simply because defendants change their minds.
[Citations.]” (In re Vargas (2000) 83 Cal.App.4th 1125, 1143-1144.) “Section 1018
permits a trial court to allow a criminal defendant to withdraw his guilty plea ‘for a good
cause shown.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 585.) “It is the defendant’s
burden to produce evidence of good cause by clear and convincing evidence. [Citation.]”
(Ibid.) “A decision to deny a motion to withdraw a guilty plea ‘ “rests in the sound
discretion of the trial court” ’ and is final unless the defendant can show a clear abuse of
that discretion. [Citation.] Moreover, a reviewing court must adopt the trial court’s
factual findings if substantial evidence supports them. [Citation.]” (People v. Fairbank
(1997) 16 Cal.4th 1223, 1254.)


                                              6
criminal justice administration fee of $129.75 payable to the City of San Jose (See Gov.
Code, §§ 29550, 29550.1, 29550.2). Defense counsel waived any right to a hearing on
defendant’s ability to pay the fees and fines imposed.
                                            III
                                        Discussion
       We have carefully reviewed the entire record, and find no arguable issue on
appeal. (Kelly, supra, 40 Cal.4th at p. 124; Wende, supra, 25 Cal.3d at pp. 441-443.)
                                     DISPOSITION
       The judgment is affirmed.




                                             7
                                  _________________________________
                                  ELIA, ACTING P.J.


WE CONCUR:




_______________________________
BAMATTRE-MANOUKIAN, J.




_______________________________
MIHARA, J.
