Filed 5/6/15 P. v. Fierro CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062496

v.                                                                       (Super.Ct.No. FVA03945)

JOSEPH REY FIERRO,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Joseph Rey Fierro appeals after the trial court denied his

petition for resentencing under Penal Code section 1170.126, known as the Three Strikes




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Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)).1

Defendant filed notice of appeal on December 10, 2014. We affirm.

                               PROCEDURAL BACKGROUND

         Defendant was charged by amended information with assault with a firearm

(§ 245, subd. (a)(2), count 1), terrorist threats (§ 422, count 2), and possession of a

firearm by a felon (former § 12021, subd. (a), count 3). It was also alleged that defendant

had two prior strike convictions from 1983 for attempted murder (§§ 664/187) and

robbery (§ 211). (§§ 667, subds. (b)-(i).) The information further alleged that these two

prior convictions constituted serious felony convictions, within the meaning of section

667, subdivision (a). A jury convicted defendant of count 3, and the trial court dismissed

counts 1 and 2 in the interest of justice. The court subsequently found the two prior strike

convictions true. On October 27, 1995, the court sentenced defendant to state prison for

25 years to life.

         On July 10, 2014, defendant filed a petition for resentencing under section

1170.126. The court denied the petition since defendant had a prior strike conviction for

attempted murder, which made him ineligible for resentencing. (§ 1170.126,

subd. (e)(3).)

         On December 10, 2014, defendant filed a notice of appeal. We affirm.




         1   All further statutory references will be to the Penal Code, unless otherwise
noted.



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                                        ANALYSIS

       This court appointed counsel to represent defendant on appeal. Counsel has filed a

brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v.

California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement

of the case, a brief statement of the facts, and identifying the following potential arguable

issues: (1) whether the court properly determined that defendant was ineligible for

resentencing under the Three Strikes Reform Act; and (2) whether the court properly

followed the statutory requirements of the Three Strikes Reform Act when it considered

his petition.

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has done. In a one-page, handwritten letter brief, defendant states that he would like

to withdraw his guilty plea from his 1983 attempted murder conviction, on the basis of

ineffective assistance of counsel. “A defendant who seeks to withdraw his guilty plea

may do so before judgment has been entered upon a showing of good cause.” (People v.

Weaver (2004) 118 Cal.App.4th 131, 145; see § 1018.) “To establish good cause, it must

be shown that defendant was operating under mistake, ignorance, or any other factor

overcoming the exercise of his free judgment. [Citations.] Other factors overcoming

defendant’s free judgment include inadvertence, fraud or duress. [Citations.] However,

‘[a] plea may not be withdrawn simply because the defendant has changed his mind.’

[Citations.]” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Here, defendant is

attempting to withdraw his plea long after judgment has been entered. Moreover, he has

failed to establish good cause. He merely asserts that his counsel pressured him into


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taking the plea agreement, that his codefendant went to trial and was acquitted, and that

he was shot by the police, so they “claim[ed] attempt[ed] murder” to “justify” their

actions. Defendant further states that, if he had not entered the plea agreement, he would

only have one strike for robbery now. Defendant has failed to demonstrate mistake,

ignorance or overbearance of his free will; thus, his claim fails.

       Defendant also asks this court to declare a mistrial as to his current offense of

being a felon in possession of a firearm (count 3). He appears to be arguing that the jury

was somehow prejudiced, since it heard evidence on counts 1 and 2, which were

subsequently dismissed. He further asserts that he was found guilty “by way of a police

report,” that no one testified against him in court, and that a firearm was never found in

his possession. A mistrial is only proper where the trial court is “informed of the

prejudice” and deems it incurable by admonition or instruction. (People v. Panah (2005)

35 Cal.4th 395, 444.) It does not appear that defendant moved for mistrial below. Thus,

he has forfeited his request. In any event, defendant appears to actually be claiming that

there was insufficient evidence to support his current conviction. “Perhaps the most

fundamental rule of appellate law is that the judgment challenged on appeal is presumed

correct, and it is the appellant’s burden to affirmatively demonstrate error. [Citation.]

Thus, when a criminal defendant claims on appeal that his conviction was based on

insufficient evidence of one or more of the elements of the crime of which he was

convicted, we must begin with the presumption that the evidence of those elements was

sufficient, and the defendant bears the burden of convincing us otherwise. To meet that

burden, it is not enough for the defendant to simply contend, ‘without a statement or


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analysis of the evidence, . . . that the evidence is insufficient to support the judgment[] of

conviction.’ [Citation.] Rather, he must affirmatively demonstrate that the evidence is

insufficient.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Defendant has

failed to do so.

       Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent

review of the record and find no arguable issues.

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                 HOLLENHORST
                                                                           Acting P. J.


We concur:


MILLER
                           J.


CODRINGTON
                           J.




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