Filed 10/16/14 P. v. Larios CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040755
                                                                    (San Benito County
         Plaintiff and Respondent,                                   Super. Ct. No. CR1300231)

         v.

GREG FRED LARIOS,

         Defendant and Appellant.


         Pursuant to a plea agreement, defendant Greg Fred Larios pleaded no contest to
possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 4) and
admitted a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)),1 a criminal street
gang enhancement (§ 186.22, subd. (b)(1)(A)) and a prior serious felony conviction (§
667, subd. (a)(1)).
         Larios was sentenced to a total term of 15 years in prison, consisting of the upper
term of three years on count 4, doubled to six years by the strike prior, consecutive to the
upper term of four years for the criminal street gang enhancement and five years for the
prior serious felony conviction. He also received a concurrent one year sentence for a
probation violation in a separate case. Larios was awarded credits and ordered to pay
various fines and fees.
         We appointed counsel to represent Larios in this court. Appointed counsel filed an
opening brief which states the case and the facts, but raises no specific issues.
         1
             Further unspecified statutory references are to the Penal Code.
       We notified Larios of his right to submit written argument in his own behalf
within 30 days, and he has filed a letter brief arguing his trial counsel was ineffective and,
consequently, his plea was involuntary.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       Shortly after 1:00 a.m. on February 15, 2013, a City of Hollister police officer was
on patrol when he saw a red two-door sedan without a front license plate. The officer
initiated a vehicle stop. The vehicle pulled over and the driver, subsequently identified as
Larios, got out of the car and ran. As he exited the vehicle, the officer saw Larios drop a
black elongated item, which was later found to be a knife with a six-inch fixed blade. As
the officer chased after Larios, he observed Larios drop a silver/chrome colored item,
later found to be a loaded nine-millimeter/.380-caliber pistol. Other officers joined the
pursuit and, upon being cornered, Larios threw several small items, including a cell
phone, aside and raised his hands. The cell phone contained messages potentially
involving the sale of drugs.
       After Larios was arrested, the arresting officer contacted a female, Priscilla
Rodarte, who had been inside the car with Larios. Rodarte had four dots tattooed on the
fingers of her left hand and one dot tattooed on her right middle finger. The officer
believed these tattoos were representative of the Nortenos street gang which claims the
number 14. Rodarte denied knowledge of any weapons and said she had been picked up
by Larios at a friend’s house. She was later released without charge.
       Officers conducted an inventory search of the vehicle Larios was driving and
found a blue pouch clipped to the driver side door. Inside the pouch was a plastic baggy
with two bindles of what appeared to be crystal methamphetamine and two baggies
containing Vicodin and Oxycontin pills. A camouflage-colored pouch on the driver side
floor contained .380-caliber ammunition, and officers found a digital scale in the center
console.



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       Larios was booked into jail, where his clothing and tattoos were photographed. At
the time of his arrest, Larios was wearing a red/black sweater over a red/black t-shirt with
the logo “Nor Cal,” and was carrying a red bandana. Larios had the word “northern”
tattooed across his stomach and “Hollis” tattooed across his chest, both of which terms
are associated with Nortenos.
       Officers subsequently determined that the vehicle Larios had been driving was a
1984 Pontiac Grand Prix with Mississippi license plates, which belonged to Elizabeth
Castellanos. According to Castellanos, her husband was friends with Larios. When she
returned from a trip to Mexico with her children, she found her car gone and believed
Larios had stolen it.
       Larios was charged by complaint (deemed an information) with transportation/sale
of methamphetamine (Health & Saf. Code, § 11379, subd. (a), count 1);
sale/transportation of Vicodin (id., § 11352, subd. (a), count 2); sale/transportation of
Oxycontin (ibid., count 3); possession of methamphetamine for sale (id., § 11378, count
4); possession of Vicodin for sale (id., § 11351, count 5); possession of Oxycontin for
sale (ibid., count 6); possession of a controlled substance with a firearm (id., § 11370.1,
subd. (a), count 7); possession of a firearm by a felon (§ 29800, subd. (a)(1), count 8);
possession of a firearm by a felon previously convicted of a violent felony (§ 29900,
subd. (a)(1), count 9); possession of ammunition (§ 30305, subd. (a)(1), count 10); and
the unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a), count 11).
       The following sentencing enhancements were also alleged: (1) as to counts 1, 2,
3, 4, 5, 6, and 11, Larios was personally armed with a firearm during the commission of
those offenses (§ 12022, subds. (a)(1), (c)); (2) all of the offenses were committed for the
benefit of, at the direction of, and in association with a criminal street gang (§ 186.22,
subd. (b)(1)(A)); (3) Larios suffered a prior “strike” conviction (§ 667, subds. (b)-(i)); (4)
Larios suffered a prior serious felony conviction (§ 667, subd. (a)(1)); and (5) Larios
served a prior prison term (§ 667.5, subd. (b)).

                                              3
       On October 24, 2013, pursuant to a plea agreement, Larios pleaded no contest to
count 4 (possession of methamphetamine for sale (Health & Saf. Code, § 11378)) and
admitted the truth of the criminal street gang; prior serious felony; and prior strike
allegations. In accordance with the terms of the agreement, the remaining counts and
allegations were stricken and three separate pending cases against Larios were dismissed.
Larios was not promised any specific sentence under the terms of the agreement, but he
was advised that the maximum possible sentence allowed by law was 15 years in prison.
       Prior to sentencing, Larios filed a Romero2 motion, which was denied. The trial
court sentenced Larios to 15 years in prison, consisting of the upper term of three years
on count 4 doubled to six years as a result of the prior strike conviction plus an additional
five years for the serious felony enhancement and an additional four years (the upper
term) for the gang enhancement. The court awarded Larios 416 days of presentence
custody credits.3
       Larios’ letter brief states a claim of ineffective assistance of counsel, indicating
that he received “bad advice about a plea offer” from a “stand in” defense counsel.
Larios’ second claim that his plea agreement was not intelligent or voluntary appears to
be founded on this same premise, i.e., that he received “bad advice” about the plea itself.
Neither of these claims can be resolved on the appellate record before us. The California
Supreme Court has “repeatedly stressed ‘that “[if] the record on appeal sheds no light on
why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was
asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A claim of


       2
        People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
       3
        Subsequent to the filing of the notice of appeal, Larios filed a motion in the trial
court seeking the correction of his presentence credits. That motion was granted and he
was awarded an additional 328 credits for a total of 744 credits.


                                              4
ineffective assistance in such a case is more appropriately decided in a habeas corpus
proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
      Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40
Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable
issue on appeal.
II.   DISPOSITION
      The judgment is affirmed.




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                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.
