Filed 4/9/13 P. v. Torres CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F064493
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MF009853A)
                   v.

ANTONIO TORRES,                                                                          OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Colette M.
Humphrey, Judge.

         Rex Adam Williams, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-


*        Before Wiseman, Acting P.J., Cornell, J., and Peña, J.
                             FACTS AND PROCEEDINGS
Amended Information
       Appellant, Antonio Torres, was charged in an amended information filed on
February 7, 2012, with two counts of attempted carjacking (Pen. Code, §§ 664 & 215,
subd. (a), counts 1 & 2),1 two counts of assault with a firearm (§ 245, subd. (a)(2), counts
3 & 4), possession of a firearm by a convicted felon (§ 12021, subd. (a)(1), count 5), and
possession of ammunition by a convicted felon (§ 12316, subd. (b)(1), count 6). Counts
1 and 2 alleged that appellant personally used and discharged a firearm in the commission
of those offenses (§ 12022.53, subds. (b) & (c)). The amended information further
alleged that appellant had two prior prison term enhancements (§ 667.5, subd. (b)) and a
prior serious felony conviction under the three strikes law (§§ 667, subds. (c)-(j) &
1170.12, subds. (a)-(e)).
Facts and Suppression Motion
       At 9:30 p.m. on October 30, 2011, Sara Strack was driving down Dixie Street in
Rosamond with her husband. While she was slowing down to turn at an intersection,
appellant came up to Strack’s husband and pointed a gun at his head. Strack stopped the
car, pulled out a knife, and pointed it at appellant. Appellant pointed the gun at Strack,
said he was not playing, and shot a round in the air. Strack described the weapon as a
little black gun.
       Strack’s husband had a struggle with the man and jumped back in the car.
According to Strack, her husband expressed: “[h]e’s all run him over, run him over.”
Strack tried to turn the car and appellant fired another shot that struck a passenger’s door
of the car.



1      All statutory references are to the Penal Code.


                                              2
       On February 15, 2012, the court conducted a section 1538.5 hearing on appellant’s
suppression motion. Deputy Shawn Mountjoy of the Kern County Sheriff’s Department
was dispatched at 9:25 p.m. on October 30, 2011, to the scene of the attempted carjacking
which occurred at the 2600 block of Dixie Street. When Mountjoy heard the suspect’s
description during the dispatch, he believed it matched appellant’s description.
       Mountjoy knew where appellant lived based on prior contacts with him for
disturbing the peace and “different crime reports.” Appellant was living on the 2600
block of Dixie Street.
       Mountjoy went to an apartment where Anthony Nunez lived. Mountjoy knew
Nunez was on probation with a search condition. A few weeks earlier, Mountjoy had
confirmed that Nunez was still on probation. Mountjoy went to Nunez’s residence and
informed Nunez that he was conducting a probation search. Mountjoy confirmed that
Nunez was still on probation. Nunez and his wife granted permission for Mountjoy to
enter the residence.
       When Mountjoy went into Nunez’s bedroom, he saw appellant lying on the floor.
Mountjoy retrieved a .25-caliber handgun in a clothes basket in the bedroom. Several
weeks later, Mountjoy learned that Nunez did not have a search condition for stolen
property. The trial court denied the suppression motion.
Plea Agreement
       Appellant accepted a plea bargain. Under the terms of the agreement, appellant
would admit one count of attempted carjacking, the allegation that he had a prior serious
felony conviction within the meaning of the three strikes law, and an amended allegation
that he used a gun in violation of section 12022.5, subdivision (a). Appellant would
receive a stipulated sentence of nine years for attempted carjacking plus ten years for the
gun use enhancement.



                                             3
       Appellant initialed and executed a felony advisement, waiver of rights, and plea
form that set forth the terms of the plea agreement, the consequences of the plea, and
advisements of appellant’s constitutional rights pursuant to Boykin/Tahl.2 Appellant
acknowledged and waived his constitutional rights in the plea form. Appellant
acknowledged at the hearing that he had gone over his rights with his attorney, he
understood his rights, and that he initialed and signed the plea form. The parties
stipulated that the police reports constituted a factual basis for the plea.
       Appellant pled no contest to count 1 and admitted the allegation that he had a prior
serious felony conviction. Appellant also admitted the amended gun use enhancement.
The remaining allegations were dismissed. The parties waived a formal probation report
and the court sentenced appellant to prison for the stipulated term of 19 years. The court
granted custody credits of 124 days and conduct credits of 19 days for 143 total days of
custody credits.
       Appellant did not obtain a certificate of probable cause. Appellate counsel has
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
                             APPELLATE COURT REVIEW
       Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel indicating that appellant was advised he could file his
own brief with this court. By letter on August 1, 2012, we invited appellant to submit
additional briefing.




2     Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122
(Boykin/Tahl).


                                               4
       Appellant replied with a short letter challenging the absence of any witnesses on
his behalf at the suppression hearing, inconsistent statements in the police reports, the
fact that he was not under any parole or probation search terms, and the assertion that he
did not fit the description of the assailant. Appellant also asks this court to reconsider his
suppression motion.
       Appellant’s contentions fall into two categories. The first involves his challenges
to the trial court’s ruling on his suppression motion. The second involves potential
defenses based on alleged inconsistencies in the police reports and the description of the
assailant.
       Although appellant may not have been under any parole or probation search
conditions at the time of his arrest, he had taken refuge in the residence of Anthony
Nunez who was under a probation search condition. Furthermore, according to the
evidence submitted at the suppression hearing, Nunez and his wife granted their consent
for Mountjoy to enter their home and conduct a probation search, whereupon appellant
was discovered in the bedroom. The facts of the search were simple. We will not
presume on appeal that defense counsel failed to call beneficial witnesses at the hearing.3
We find no error in the trial court’s ruling on the suppression motion.

3      The defendant has the burden of proving ineffective assistance of trial counsel. To
prevail on a claim of ineffective assistance of trial counsel, the defendant must establish
not only deficient performance, which is performance below an objective standard of
reasonableness, but also prejudice. A court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.
Tactical errors are generally not deemed reversible. Counsel’s decisionmaking is
evaluated in the context of the available facts. To the extent the record fails to disclose
why counsel acted or failed to act in the manner challenged, appellate courts will affirm
the judgment unless counsel was asked for an explanation and failed to provide one, or,
unless there simply could be no satisfactory explanation. Prejudice must be affirmatively
proved. The record must affirmatively demonstrate a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
(People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in

                                              5
       Appellant contends that he may have had defenses to the allegations and further
implies his innocence to the allegations. Appellant, however, admitted count 1, an
allegation that he had a prior serious felony conviction, and a gun use enhancement. A
guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v.
Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the
People need not introduce proof to support the accusation. The plea ipso facto supplies
both evidence and verdict and is deemed to constitute an admission of every element of
the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another
ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d
739, 748.)
       A plea of nolo contendere (or no contest) is legally equivalent to a guilty plea and
also constitutes an admission of every element of the offense pled. (People v. Warburton
(1970) 7 Cal.App.3d 815, 820-821.) We therefore reject appellant’s contention that he
had defenses to the allegations he admitted or was not guilty of them.
       Finally, to the extent that appellant’s letter can be construed as a challenge to the
validity of the plea agreement, he is barred from making such a challenge because he
failed to obtain a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68,
77-79.) Defendants cannot set aside their pleas merely because they change their minds
or have buyer’s remorse. (In re Vargas (2000) 83 Cal.App.4th 1125, 1143-1144; People
v. Knight (1987) 194 Cal.App.3d 337, 344.)
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.



tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza
(2000) 24 Cal.4th 130, 166.) We find no evidence in the record on appeal that defense
counsel’s representation was ineffective.


                                               6
                            DISPOSITION
The judgment is affirmed.




                                 7
