Filed 11/18/14 P. v. Peralta CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065545

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN319709)

DANIEL PERALTA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard R.

Monroy, Judge. Affirmed.

         Charles R. Khoury, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.
                                             I.

                                    INTRODUCTION

       Daniel Peralta pled guilty to one count of burglary (Pen. Code, § 459)1 and

admitted that the residence he burglarized was an inhabited dwelling house (§ 460). In

addition, Peralta admitted that another person, other than an accomplice, was present in

the residence during the commission of the burglary (§ 667.5, subd. (c)(21)). Prior to

sentencing, Peralta filed a motion to withdraw his guilty plea. After a hearing, the court

denied the motion to withdraw and sentenced Peralta to a stipulated sentence of two years

in prison.

       Appointed appellate counsel filed a brief presenting no argument for reversal, but

inviting this court to review the record for error in accordance with People v. Wende

(1979) 25 Cal.3d 436 (Wende). Peralta filed a supplemental brief seeking reversal. After

having independently reviewed the entire record for error as required by Anders v.

California (1967) 386 U.S. 738 (Anders) and Wende, and considering the issues raised in

Peralta's supplemental brief, we affirm.

                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In June 2013, the People filed an amended complaint charging Peralta with

burglary (§ 459) (count 1), assault by means of force likely to produce great bodily injury


1     Unless otherwise specified, all subsequent statutory references are to the Penal
Code.
                                            2
(§ 245, subd. (a)(4)) (count 2), false imprisonment by violence menace, fraud, and deceit

(§§ 236, 237) (count 3), and harassment by telephone or electronic communication

(§ 653m, subd. (a)) (count 4). As to count 1, the People alleged that the burglary was of

an inhabited dwelling house (§ 460) and that another person, other than an accomplice,

was present in the residence during the commission of the burglary (§ 667.5, subd.

(c)(21)).

       In August 2013, the People and Peralta entered into a plea agreement. Peralta

agreed to plead guilty to count 1 (burglary) (§ 459) and to admit the residential burglary

(§ 460) and "hot prowl" allegations (§ 667.5, subd. (c)(21)). The People agreed to

dismiss the balance of the charges and also to dismiss another case (CN275102).2 In

addition, the parties agreed that Peralta would be sentenced to two years in state prison.

The trial court held a change of plea hearing and accepted Peralta's guilty plea and

admissions.3

       In November 2013, the trial court granted Peralta's request to relieve his counsel

and appoint new counsel for the purpose of determining whether to file a motion to

withdraw his plea.



2      The probation report indicates Peralta was charged with a single count of battery
(§ 242) in CN275102.

3       At the change of plea hearing, the trial court stated, "[T]he reason you are pleading
guilty is . . . you entered a residential building occupied by another person with the intent
to commit a felony therein. [¶] Is that what you did, sir?" Peralta responded in the
affirmative.
                                                 3
       In January 2014, Peralta filed a motion to withdraw his guilty plea. In his brief in

support of his motion, Peralta contended that his plea was unlawful because it was

entered under duress and was the product of ineffective assistance of counsel. Peralta

claimed that his former attorney had pressured him into pleading guilty, failed to perform

an adequate investigation of the facts surrounding the charged crimes, and failed to

advise him of various consequences of his plea, including that he would be required to

serve 85 percent of the imposed sentence in custody and that he was pleading guilty to a

strike offense. Peralta lodged his own declaration in support of these contentions.

       The People filed an opposition to the motion. In their opposition, the People

contended that Peralta had not established that his former counsel had provided

ineffective assistance, and noted that Peralta's former counsel would testify at the hearing

on the motion to withdraw regarding the investigation that he conducted in the case. The

People also argued that Peralta had not established that he pled guilty under duress. The

People noted that Peralta had discussed whether to plead guilty with his former counsel,

and maintained that the transcript of the plea hearing demonstrated that Peralta pled

guilty knowingly and voluntarily. In addition, the People noted that the trial court had

specifically informed Peralta at the change of plea hearing that he would be required to

serve 85 percent of the imposed sentence.4




4       Although not specifically mentioned by the People in their opposition, at the
change of plea hearing, the trial court also informed Peralta that he was pleading guilty to
a strike offense.
                                               4
       The trial court held a hearing on Peralta's motion to withdraw his guilty plea.

Peralta and his former counsel both testified concerning the circumstances surrounding

Peralta's guilty plea. At the conclusion of the hearing, the trial court denied the motion.

The trial court ruled that Peralta's counsel "did not, in any way, provide ineffective

assistance," and that Peralta's motion was a "clear example of what we refer to as buyer's

remorse."

       At the same hearing, the trial court sentenced Peralta to the lower term of two years

on count 1 (burglary) (§ 459) in accordance with the plea agreement.

       Peralta filed a timely appeal. Together with his notice of appeal, Peralta filed a

request for a certificate of probable cause with the trial court. In his request, Peralta

indicated that he wished to seek appellate review of the trial court's denial of his motion to

withdraw his guilty plea. The trial court granted the certificate of probable cause.

                                               III.

                                         DISCUSSION

       Appointed appellate counsel has filed a brief summarizing the facts and

proceedings in the trial court. Counsel presented no argument for reversal but invited this

court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436.

       After this court received counsel's brief, we gave Peralta an opportunity to file as

supplemental brief. Peralta filed a four-page brief in which he listed the following as

"possible issues:"

            "My attorney failed to investigate the true facts of the case.

                                                5
          "My attorney failed to investigate witnesses both for the prosecution
          and the defense.

          "Possible Brady [5] non-disclosure violation, with DV Declaration
          DVN 21511.

          "Possible failure to protect my right to due process.

          "Allowing me to plead guilty, even when evidence would tend to
          show otherwise.""

       None of these claims supports reversal of the judgment. To begin with, the record

on appeal does not support Peralta's contention that his former attorney failed to

adequately investigate the case. Peralta's former counsel testified at the hearing on

Peralta's motion to withdraw his guilty plea concerning the steps that he took in

investigating the case, including interviewing Peralta, reviewing the prosecution's

evidence, obtaining information from various witnesses concerning the relationship

between Peralta and the victim, and speaking to Peralta's brother, who was with Peralta

on the night the charged crimes were alleged to have been committed. Peralta has failed

to establish that this was an inadequate investigation.

       Peralta also fails to establish that the prosecution committed a Brady violation in

allegedly failing to disclose a declaration filed by the victim in order to obtain a domestic

violence restraining order against Peralta. The record on appeal does not reveal whether

the declaration would have been favorable to Peralta, whether it was suppressed, or

whether it would have had any effect on this case. Accordingly, Peralta's Brady claim

5      (Brady v. Maryland (1963) 373 U.S. 83.)
                                          6
fails. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 176 [" 'There are three

components of a true Brady violation: The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence must

have been suppressed by the State, either willfully or inadvertently; and prejudice must

have ensued.' "].) Peralta also has not demonstrated that his right to due process was

violated in the trial court.

        Finally, Peralta has not established that his counsel provided ineffective assistance

in permitting him to plead guilty. At the hearing on Peralta's motion to withdraw his

guilty plea, Peralta's former counsel outlined the considerable evidence of Peralta's guilt,

including the victim's anticipated testimony, evidence of the victim's injuries, and

evidence that Peralta had committed other acts of domestic violence. In addition, Peralta

faced a significant potential prison sentence in the event that he were to be found guilty

after a trial.6

        A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders,

supra, 386 U.S. 738, including the issues raised in Peralta's supplemental brief, has

disclosed no reasonably arguable appellate issue. Peralta has been adequately

represented by counsel on this appeal.




6      The plea agreement states that Peralta faced a potential maximum sentence of six
years in prison.
                                             7
                                    IV.

                                DISPOSITION

    The judgment is affirmed.




                                              AARON, J.

WE CONCUR:



        HALLER, Acting P. J.



               O'ROURKE, J.




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