Filed 7/25/16 P. v. Luna CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C081069

                   Plaintiff and Respondent,                                     (Super. Ct. No. 15F01091)

         v.

JULIO LUNA,

                   Defendant and Appellant.



         This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende).
                                               I. BACKGROUND
         A felony complaint filed in February 2015 charged defendant Julio Luna with
attempted second degree robbery (count 1; Pen. Code, §§ 664/211);1 attempted vehicular
escape from a pursuing peace officer’s distinctively marked motor vehicle, which was
displaying at least one red lamp and sounding its horn as was reasonably necessary


1   Undesignated statutory references are to the Penal Code.

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(count 2; Veh. Code, § 2800.2, subd. (a)); and unlawful use of personal identifying
information (count 3; § 530.5, subd. (a)). Codefendant Sylvia Lorraine Soltero was also
charged in counts 1 and 3.
        On April 30, 2015, the complaint was amended to charge count 1 as threatening
the victim with a deadly weapon, a misdemeanor. (§ 417, subd. (a)(1).) The other counts
remained the same. The amended complaint also alleged a prior strike.
        After a preliminary hearing on the same date, the trial court held defendant to
answer on all counts and deemed the amended complaint an information.
        On June 26, 2015, defendant sought to make a Marsden motion.2 On July 8, 2015,
the Marsden motion was dropped, and defendant moved for a Faretta waiver.3 Trial,
which had also been scheduled for July 8, was continued due to the unavailability of
defendant’s trial attorney. On July 10, 2015, Judge Allen Sumner heard and denied
defendant’s Faretta motion for two reasons: (1) it was untimely because trial had been
originally set for July 8, 2015, and defendant claimed he would need four months to
prepare; and (2) it appeared that defendant was making the motion out of frustration with
appointed counsel, not because he truly wanted to represent himself. The trial date was
rescheduled for July 27, 2015.
        On July 17, 2015, the court heard defendant’s renewed Marsden motion. Judge
Michael Bowman held an extensive hearing on the motion and denied it. Defendant
thereafter made an oral Faretta request. After defendant’s counsel explained the basis of
Judge Sumner’s ruling on defendant’s prior Faretta motion, Judge Bowman denied this
one.




2   People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
3   Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).

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        On July 27, 2015, defendant again sought a Faretta waiver and a new public
defender was assigned to defendant’s case. On July 31, 2015, the scheduled Faretta
hearing was apparently dropped from calendar at the request of appointed counsel.
        On September 14, 2015, the case was assigned to trial before Judge Delbert Oros,
and defendant made a new Faretta request. Judge Oros scheduled a hearing on the
Faretta motion for the next day.
        On September 15, 2015, Judge Oros heard defendant’s Faretta motion. After an
extensive hearing, Judge Oros denied the motion, finding that it was untimely because
defendant had failed to raise it within the last six weeks, instead waiting to renew it until
the start of trial, and because the motion appeared to be made for purposes of delay.
After the motion was denied, defendant threatened to kill himself.
        On September 16, 2015, the parties notified Judge Oros that they were about to
resolve the case. Judge Oros advised the parties that they needed to settle the issue of
victim restitution, and that jury selection would begin the following week if the case did
not resolve. The parties stipulated to a substantial start of the case.
        On September 17, 2015, the People filed an amended information. The former
count 3 (felony identity theft) was renumbered count 1, and the former count 1
(unlawfully drawing and exhibiting a deadly weapon) was renumbered count 3. Count 2
remained the same. Four counts of felony identity theft (counts 7-10; § 530.5, subd. (a))
and four counts of misdemeanor identity theft (counts 4-6 & 11; § 530.5, subd. (c)(1))
were added. A prior strike and a prior prison term were alleged.
        On the same date, defendant pleaded no contest to counts 1 and 2 and admitted the
prior strike and prior prison term allegations, in return for a stipulated sentence of eight
years four months. Counts 3 through 11 were to be dismissed with Harvey waivers.4




4   People v. Harvey (1979) 25 Cal.3d 754 (Harvey).

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       The factual basis for defendant’s plea, as stipulated by the parties at the time of the
plea, was as follows:
       “As to both [defendant] and [codefendant], in Count 1, on or about February 19,
2015, in the County of Sacramento, again, in regards to the [] section 530.5[,
subdivision ](a), [defendant] and [codefendant] had obtained Scott Chou’s personal
identifying information, and . . . it was . . . handwritten on the back of a check, not
belonging to [codefendant] or [defendant] and not being made out or by the account of
Scott Chou, but on the back of the check was Scott Chou’s driver’s license number,
address, and other personal information. That was found in the vehicle that [defendant]
and [codefendant] were in.
       “In utilizing that information, [codefendant] and [defendant] went to the Kohl’s
department store in Folsom and used a temporary Kohl’s credit card account number to
purchase a number of Best Buy gift cards in the jewelry department of Kohl’s.
       “That credit card account was flagged by Kohl’s in their internal system during the
transaction, at which point, [codefendant] and [defendant] were informed of that
particular issue, [defendant] presented a paper identification with Mr. Chou’s name, but
[defendant]’s photograph on that ID, at which point, an employee of Kohl’s told them
that the transaction was not going to be completed.
       “[Codefendant] and [defendant] went to leave. The Kohl’s store at that point—
during that transaction, additionally, a[n] ID belonging to Datari Williams was seen in
[defendant]’s wallet.
       “Mr. Chou was asked if he knew [codefendant] or [defendant]. He does not and
does not know how they had his information, did not give them authorization for that.
       “[¶] . . . [¶]
       “Count 2, on or about that same date, February 19th, in the County of Sacramento,
the defendant . . . did commit a Vehicle Code violation of 2800.2[, subdivision ](a), in



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that [defendant] did willfully drive a vehicle. [Codefendant] was in the car at the time
leaving the Kohl’s store in Folsom.
       “At the time that he was willfully driving the vehicle, he did intend to evade the
Folsom Police Department. The police department patrol vehicle at the time was
operated by an Officer Simpson.
       “Officer Simpson was in . . . a marked patrol vehicle. He was in a police uniform
at the time. As he got behind the vehicle that [defendant] was driving, he did initiate at
least one forward-facing red lamp, which was visible at the time during the pursuit. He
also had sirens going throughout the pursuit as reasonably necessary.
       “The pursuit lasted for about five and a half miles distance-wise. During the
pursuant [sic], [defendant] did run at least three stoplights, a couple stop signs, and was
speeding at the time. It took a PIT maneuver on behalf of Officer Simpson to bring the
car to a stop over on the other side of the bridge in Folsom going towards Orangevale.
       “[Defendant] did intend to evade the police at the time, and based on the Vehicle
Code violations, did drive the vehicle in a manner exhibiting willful and wanton
disregard for the safety of the public.
       “Looking to [defendant]’s priors, [defendant] has suffered a . . . strike conviction,
on March 15, 1993. That was for a violation of [] section 245[, subdivision ](a)(2),
assault with a deadly weapon or firearm. That happened here in Sacramento County . . . .
That conviction comes within [] section 1192.7[, subdivision ](c), which comes within
section 667[, subdivisions ](b) through (i) . . . , and [] section 1170.12, a serious or
violent felony.
       “In addition, [defendant] also suffered a prior prison conviction on October 19,
2005, for the crime of possession of ammunition by a prohibited person, violation of
section 12316[, subdivision ](b)(1). In that [defendant] was sentenced to a prison term
and did not remain free of custody following that term for five years within . . . section
667.5[, subdivision ](b). That conviction also occurred in Sacramento County.”

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       On November 6, 2015, the trial court imposed the stipulated state prison sentence,
consisting of the three-year upper term on count 1, plus eight months (one-third the
midterm) on count 2, with both terms doubled for the strike, plus one year consecutive
for the prior prison term. The court awarded 521 days of presentence custody credit (261
actual days and 260 conduct days). The court imposed a $600 restitution fine (§ 1202.4,
subd. (b)), a matching suspended parole revocation restitution fine (§ 1202.45), an $80
court operations assessment (§ 1465.8), and a $60 criminal conviction assessment (Gov.
Code, § 70373). The court also ordered victim restitution to Kohl’s Department Store in
an amount to be determined.
       Defendant filed a notice of appeal in propria persona. He did not obtain a
certificate of probable cause.
                                     II. DISCUSSION
       We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d
436.) Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief.
       Defendant filed supplemental briefing that attacks the orders denying his Marsden
and Faretta motions, and requests leave to withdraw his plea on the ground that he
entered it due to his counsel’s misrepresentations and coercion. These contentions cannot
be addressed on appeal.
       A defendant appealing from a judgment of conviction upon a plea of no contest
must obtain a certificate of probable cause from the trial court (Cal. Rules of Court, rule
8.304(b)(1)), unless the appeal is based on the denial of a suppression motion (id. at
(b)(4)(A)) or on “[g]rounds that arose after entry of the plea and do not affect the plea’s
validity” (id. at (b)(4)(B)). (See § 1237.5, subd. (b); People v. Cuevas (2008) 44 Cal.4th



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374, 383-384.) We must apply these rules strictly. (People v. Mendez (1999) 19 Cal.4th
1084, 1098.)
       Defendant’s contentions challenge matters that arose before the plea and the
validity of the plea itself. Thus, his failure to obtain a certificate of probable cause
precludes review of these contentions.
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
                                    III. DISPOSITION
       The judgment is affirmed.




                                                     /S/

                                                   RENNER, J.



We concur:



/S/

DUARTE, Acting P. J.



/S/

HOCH, J.




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