Filed 7/29/14 P. v. Galaviz CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064806

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD247287)

MICHAEL GALAVIZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A.

Eyherabide, Judge. Affirmed.

         Loleena Ansari, by appointment of the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Counsel has filed a brief asking this court to review the record for error as

mandated by People v. Wende (1979) 25 Cal.3d 436. We affirm the judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND

       A. Factual Background1

       At around 9:30 p.m. on March 22, 2013,2 San Diego Police Department Officer

Ryan Larson responded to a call about a disturbance involving a White male and an

intoxicated Hispanic male who were arguing in an alley. At the scene, Officer Larson

found Galaviz in an intoxicated state, staggering around, yelling loudly, and slurring his

speech. When Officer Larson asked Galaviz to take a seat on the curb, Galaviz

aggressively said, "I ain't going to do shit," and "Who the fuck are you?" When Galaviz

took off his backpack, Officer Larson asked told him to stop what he was doing, but

Galaviz did not comply. Galaviz then clenched his right and left fists and took what

Officer Larson described as a "fighting stance." Fearful that Galaviz wanted to fight,

Officer Larson pulled out his taser from his duty belt. Galaviz said, "I ain't doing shit,"

picked up his backpack, and began walking towards the officer. Concerned that Galaviz

was going to hurt him, Officer Larson holstered his taser and sprayed Galaviz with "OC

spray." Galaviz started to scream, clenched his fists again, flexed his arms, and again

began walking towards Officer Larson. Officer Larson then unholstered his taser and

tasered Galaviz, who was within arm's reach. Believing the taser was not effective

because Galaviz started trying to pull out the wires and took a couple of quick steps



1      As Galaviz entered a guilty plea before a trial was held in this matter, the
following factual background is derived from the reporter's transcript of the preliminary
hearing held on May 21, 2013.

2      All further dates are to calendar year 2013.
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towards him, Officer Larson abandoned the taser and took out his baton. Galaviz then

began to comply. When Officer Larson told him to get on the ground, Galaviz complied

and Officer Larson handcuffed him. Galaviz's behavior continued to be assaultive as he

twice spit at Officer Larson yelling, "I'll fucking kill you!" Other officers eventually

arrived at the scene and assisted Officer Larson in taking Galaviz into custody.

       B. Procedural Background

       In early April the San Diego County District Attorney filed a felony complaint

charging Galaviz with felony vandalism (count 1: Pen. Code,3 § 594, subds. (a) &

(b)(1)), misdemeanor resisting an officer (count 2: § 148, subd. (a)(1)), and misdemeanor

public intoxication (count 3: § 647, subd. (f)). The complaint alleged Galaviz had

suffered specific probation denial priors (§ 1203, subd. (e)((4)) and two prison priors

(§§ 667.5, subd. (b) & 668). Later that month the court granted Galaviz's motion for self-

representation.

       In early May an amended complaint was filed against Galaviz realleging counts 1

through 3 and adding a fourth count charging him with felony resisting an executive

officer (§ 69). At the arraignment on the amended complaint, Galaviz entered a plea of

not guilty. Galaviz thereafter filed a motion to suppress evidence pursuant to section

1538.5.

       In late May the court conducted the preliminary hearing. During the testimony of

the first witness, Galaviz asked the court whether he was allowed to "do a 1538 hearing



3      All further statutory references will be to the Penal Code.
                                              3
motion" at the end of the preliminary hearing. After informing Galaviz that a motion

under section 1538.5 "is a noticed motion," the court stated, "Today you cannot bring it."

Galaviz replied, "Okay." After considering the evidence presented at the preliminary

hearing and hearing the arguments of the parties, the court held Galaviz to answer all of

the counts and allegations set forth in the amended complaint.

       In early June an information was filed realleging the counts4 and allegations set

forth in the amended complaint, and Galaviz, who was still representing himself,

thereafter filed a motion to dismiss in which he asked the court to "separate charge count

ONE from charge FOUR." On June 5 the court suspended criminal proceedings pursuant

to section 1368 and ordered a mental competency exam and hearing. Also on this day the

court appointed a deputy public defender to represent Galaviz.

       On August 15, Dr. Matthew Carroll from the County of San Diego Health and

Human Services Agency filed a forensic psychiatry clinical report regarding Galaviz's

mental competency. The next day defense counsel stipulated to both Dr. Carroll's

qualifications and the findings in his report. After reviewing the case file and Dr.

Carroll's report, the court found Galaviz to be mentally competent to stand trial.

       At the August 29 arraignment on the information, Galaviz entered a plea of not

guilty. The next day, at a change-of-plea hearing, Galaviz─assisted by counsel─initialed

and signed a guilty plea form indicating that he was pleading guilty to misdemeanor


4      The four counts were renumbered in the information as follows: Count 1: felony
vandalism (§ 594, subds. (a) & (b)(1)); count 2: felony resisting an executive officer (§
69); count 3: misdemeanor resisting an officer (§ 148, subd. (a)(1)); and count 4:
misdemeanor public intoxication (§ 647, subd. (f)).
                                             4
resisting an officer, as charged in count 3, subject to specified terms. As the basis for his

guilty plea, Galaviz admitted that he "willfully and unlawfully resist[ed], delayed or

obstructed a public peace officer in the discharge of his duties." The court accepted the

guilty plea after questioning Galaviz, finding that Galaviz had entered the plea

"knowingly, intelligently, and voluntarily."

       In accordance with the terms of the negotiated plea agreement, the court at

sentencing denied probation, dismissed the remaining counts and allegations in the

information, lifted the stay on the execution of the three-year prison term imposed in a

prior case (SCD243722), and terminated Galaviz's probation in a third case

(SCS255144). In case number SCD243722, Galaviz received 620 days of presentence

credit. In this case (SCD247287), he received 328 days of presentence credit.

                                       DISCUSSION

       Appointed appellate counsel has filed a brief summarizing the proceedings below.

Counsel presents no argument for reversal, but asks this court to review the record for

error as mandated by People v. Wende, supra, 25 Cal.3d 436. Pursuant to Anders v.

California (1967) 386 U. S. 738, counsel refers to the following as possible, but not

arguable, issues: (1) Is Galaviz's guilty plea constitutionally valid?; (2) Did the court

comply with its duty under section 1192.5 and People v. Holmes (2004) 32 Cal.4th 432 to

establish a sufficient factual basis for the guilty plea?; (3) Was Galaviz sentenced in

accordance with his guilty plea agreement?; (4) Did the court err in amending the

complaint before the information was filed?; (5) Did the court err in denying Galaviz's



                                               5
request for a hearing on his motion to suppress evidence under section 1538.5?; and (6)

Did the court err in finding Galaviz mentally competent?

      We granted Galaviz permission to file a brief on his own behalf. He has not

responded.

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

Anders v. California, supra, 386 U.S. 738, including the possible issues raised by

appellate counsel, has disclosed no reasonably arguable appellate issue. Galaviz has been

represented adequately by appellate counsel.

                                     DISPOSITION

      The judgment is affirmed.


                                                                     NARES, Acting P. J.

WE CONCUR:


HUFFMAN, Acting P. J.


AARON, J.




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