Filed 6/24/14 P. v. Matias CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H039856
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS100989)

         v.

MARCO ANTONIO MATIAS,

         Defendant and Appellant.


         Defendant Marco Antonio Matias was charged in connection with a drive-by
shooting that occurred on March 18, 2010. Matias entered into a negotiated plea
agreement by which he pleaded no contest to three of the eight charged offenses--felony
attempted murder (Pen. Code, §§ 664, 187, subd. (a)),1 felony assault with a
semiautomatic firearm (§ 245, subd. (b)), and misdemeanor street terrorism (§ 186.22,
subd. (a))--in exchange for a sentence of 18 years and four months in prison and
dismissal of the remaining charges. Matias also admitted to using a firearm during the
commission of the offenses of attempted murder and assault with a semiautomatic
firearm.
         Immediately prior to sentencing, Matias retained new counsel and sought to
continue the sentencing hearing and to withdraw his plea on the ground that his prior
attorney failed to inform him as to the terms of the plea agreement. Following a hearing
at which Matias’s prior counsel testified, the court denied Matias’s motions and
         1
             Further unspecified statutory references are to the Penal Code.
sentenced him to a term of 18 years and four months. Matias appealed. For the
following reasons, we affirm.
I.     FACTUAL BACKGROUND2
       On the evening of March 18, 2010, Salinas police officers responded to a report of
a shooting. At the scene, the officers encountered the victims, victim 1 and victim 2.
Victim 1 had gunshot wounds to the chest and both arms. While being transported to the
trauma center, victim 1 told officers that he recognized the shooter but could not identify
him by name. According to victim 1, a vehicle driven by the shooter and carrying a
female passenger had pulled up next to his vehicle, the driver made a hand gesture
associated with the Hebbron gang, and then the driver shot him.
       Victim 2, who was unharmed, told officers that a vehicle occupied by a man and a
woman had pulled up next to the vehicle in which he and victim 1 were driving. The
male driver looked at them, yelled, “What?” and “Hebbron,” and then shot at their
vehicle. Victim 2 said that he recognized the shooter as an employee of a nearby grocery
store, but that he did not know the man’s name.
       Officers identified several bullet holes in the driver side door and the front
windshield of the victims’ vehicle. They found five shell casings in the roadway where
the victims reported the shooting had occurred.
       On March 22, 2010, victim 1 and victim 2 came to the police station to inform
investigators that they could identify the shooter as Matias, an employee of the “Foods
Co grocery store” who lived on “St. Charles Way in Salinas.” Victim 1 and victim 2
explained that they knew Matias from Alisal High School. Both victims positively
identified Matias as the shooter from a photographic lineup.
       Officers obtained and executed a warrant for Matias’s arrest. Search of his
residence and vehicle, conducted pursuant to a warrant, yielded 11.9 grams of marijuana,

       2
           The facts are taken from the probation officer’s report.


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approximately 9.9 grams of powder cocaine, and a CD and iPod containing rap music
associated with the Sureno gang.
       Matias’s girlfriend told officers that she was in the vehicle with Matias during the
shooting and that he had discharged a firearm.
II.    PROCEDURAL BACKGROUND
       The information charged defendant with two counts of attempted willful,
deliberate, and premeditated murder (§§ 664, 187, subd. (a), counts 1 & 2); shooting at an
occupied vehicle (§ 246, count 3); two counts of assault with a semiautomatic firearm (§
245, subd. (b), counts 4 & 5); possession of cocaine (Health & Saf. Code, § 11350, subd.
(a), count 6); felony street terrorism (§ 186.22, subd. (a), count 7); and misdemeanor
marijuana possession (Health & Saf. Code, § 11357, subd. (b), count 8). Each of the first
five counts alleged that Matias personally used a firearm and inflicted great bodily injury
in the commission of the alleged offense (§§ 12022.5, subd. (a), 12022.7, subd. (a)), and
that the offense was gang-related (§ 186.22, subd. (b)(1)).
       Matias’s case was scheduled to go to trial on April 29, 2013. On April 24, 2013,
the district attorney offered a plea deal of 20 years in state prison, which would have
required Matias to plead to a one strike offense. According to Matias, his attorney,
Miguel Hernandez, did not inform him whether the deal required him to plead to a strike
offense. Matias rejected the deal and Hernandez continued negotiating with the district
attorney regarding a possible plea. On April 26, 2013, Matias entered into a negotiated
plea agreement that called for a sentence of 18 years and four months. Under the terms
of the agreement, the count 1 attempted murder charge was amended to delete the
premeditation language and count 7 was amended to allege misdemeanor, not felony,
street terrorism. Matias pleaded no contest to the amended count 1 attempted murder
charge, the count 4 assault with a semiautomatic firearm charge, and the count 7
misdemeanor street terrorism charge. Matias admitted that he used a firearm during the



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commission of the attempted murder and the assault with a semiautomatic firearm. The
plea resulted in two strike convictions under the Three Strikes law.
       Matias’s sentencing hearing was set for June 21, 2013. At that hearing, Matias
moved to substitute Eugene Martinez as his attorney of record. In view of the
substitution, the court continued the sentencing until June 28, 2013. On June 27, 2013,
Matias moved to withdraw his plea pursuant to section 1018 on the ground that he did not
enter it intelligently, knowingly, and voluntarily. Specifically, Matias maintained that he
had not understood that the plea deal required him to plead to two strike offenses. Matias
further moved to withdraw his plea based on ineffective assistance of counsel, arguing
that Hernandez never informed him that his plea would result in two strike convictions.
       On June 28, 2013, the court heard testimony from attorney Hernandez, who
testified that it is his custom and practice to inform clients when they are facing strike
charges and to explain the consequences of a strike conviction. With respect to Matias,
Hernandez testified that “at one point” he informed Matias that the attempted murder and
assault charges were strike offenses, but that he “didn’t go into too much detail.”
Hernandez further stated that he recalled telling Matias during the plea negotiations “that
it’s now two strikes if he wants to plead to it for less time.”
       The trial court credited Hernandez’s testimony and concluded that he “did have
conversations with the defendant about strikes, the consequences of strikes and there was
no deficiency or ineffectiveness in his representation of the defendant.” The court further
concluded that defendant’s plea was knowing, intelligent, and voluntary. Accordingly,
the court denied the motion to withdraw and the motion to continue sentencing, and
proceeded to sentence Matias to the stipulated sentence of 18 years and four months. The
court sentenced Matias to the lower term of five years on the count 1 attempted murder,
plus 10 years for the firearm enhancement. (§§ 664, subd. (a), 12022.5.) The court
imposed a subordinate two-year term for the count 4 assault with a one-year and four-
month firearm enhancement. (§§ 1170.1, subd. (a), 245, subd. (b), 12022.5.)

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       Matias did not obtain a certificate of probable cause, but timely appealed.
Appointed appellate counsel filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436, stating the case and the facts but raising no issues and requesting that this
court review the record for error independently. Matias submitted a letter brief urging
that (1) Hernandez misled him into believing that he would not incur any strikes as a
result of the plea and (2) the trial court should have granted his motion to extend
sentencing.
III.   DISCUSSION
       Matias’s brief does not raise any viable issues on appeal.
       First, Matias argues that he was not informed that his no contest plea would result
in two strike convictions. We understand this argument to be an attack on the validity of
the plea on grounds of ineffective assistance of counsel and involuntariness. But a
criminal defendant who--like Matias--appeals following a plea of no contest without a
certificate of probable cause can challenge only the denial of a motion to suppress
evidence or raise grounds arising after the entry of the plea that do not affect its validity.
(§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4).) Because Matias did not seek or obtain
a certificate of probable cause, his challenges to the validity of his plea are not
reviewable. (People v. Johnson (2009) 47 Cal.4th 668, 679 [certificate of probable cause
required to appeal from denial of motion to withdraw plea]; In re Chavez (2003) 30
Cal.4th 643, 651 [same where motion to withdraw is based on alleged ineffective
assistance of counsel in advising defendant regarding plea].)
       Second, Matias challenges the trial court’s denial of his request to continue the
sentencing hearing. Matias sought a continuance solely because his newly retained
counsel required additional time to investigate and supplement the motion to withdraw
Matias’s no contest plea. “Thus, in substance, the motion was a challenge to the validity
of the plea” such that “a certificate of probable cause was required, and defendant’s
failure to obtain one is fatal to this appeal.” (People v. Emery (2006) 140 Cal.App.4th

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560, 565 [certificate of probable cause required to appeal from denial of motion for
continuance requested solely “to allow defense counsel to investigate” potential grounds
“to withdraw defendant’s no contest plea and admissions”].)
      In addition to considering the issues submitted by Matias, pursuant to Wende 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.
IV.   DISPOSITION
      The judgment is affirmed.




                                                              Premo, Acting P.J.




      WE CONCUR:




             Elia, J.




             Mihara, J.



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