P. v. Aguilar
Filed 11/22/11 P. v. Aguilar CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
| THE PEOPLE, Plaintiff and Respondent, v. STEVEN AGUILAR, Defendant and Appellant. | 2d Crim. No. B234331 (Super. Ct. No. GA071678-02) (Los Angeles County) |
Steven Aguilar appeals a judgment of conviction entered after he pleaded nolo contendere to one count of attempted murder, and admitted that a principal intentionally discharged a firearm causing great bodily injury, and that the crime was committed to benefit a criminal street gang. (Pen. Code, §§ 187, subd. (a), 189, 664, 12022.53, subds. (c), (e), 186.22, subd. (b)(1)(C).)[1] We appointed counsel to represent him in this appeal. After counsel's examination of the record, he filed an opening brief raising no issues. (People v. Wende (1979) 25 Cal.3d 436, 441.) On October 25, 2011, we advised Aguilar that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. We have received a response from him contending that his nolo contendere plea is invalid because he entered it under stress and without sufficient time to consider the consequences. He adds that he did not understand the advisement of his constitutional rights prior to entering the plea. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 123-124, we present a factual and procedural summary of the case, and a brief discussion of Aguilar's contentions.
FACTS AND PROCEDURAL HISTORY
On February 16, 2008, Daniel Rodriguez drove a maroon-colored sports utility vehicle by a residence on Lomita Street in Glendale. Aguilar and Iban Ma Gurrola were passengers in the vehicle. Erick Rodriguez and Miguel Alvarez were outside the Lomita Street residence. The men in the vehicle asked Rodriguez if he was a "tuna fish," i.e., a member of the Toonerville criminal street gang. Rodriguez replied no, and lifted his shirt to show an absence of tattoos. The men in the vehicle shouted "Rascals" and "Fuck Tuna Fishes," and drove away. The vehicle soon returned and the passengers fired gunshots at Alvarez, who received wounds to his back and foot. The Rascals and the Toonerville street gangs are rivals.
The vehicle immediately left the area, but was stopped by police officers a short distance away. Aguilar left the backseat and ran into a neighboring backyard. Officers found him hiding in bushes and arrested him. A search of the vehicle revealed two firearms.
The preliminary examination was held on July 21 and 23, 2008. On August 8, 2008, the prosecutor filed an information charging Aguilar with two counts of attempted murder and two counts of unlawful possession of a firearm by a felon. (§§ 187, subd. (a), 189, 664, 12021, subd. (a)(1).) The prosecutor also alleged that a principal used and discharged a firearm causing great bodily injury, and that the crimes were committed to benefit a criminal street gang. (§§ 12022.53, subds. (b)-(e), 186.22, subd. (b)(1)(C).)
On April 26, 2001, the prosecutor informed the court that Aguilar and his codefendants had "reached an agreement." Aguilar confirmed that the parties had agreed on a 35-year prison term in exchange for his plea. The prosecutor then informed Aguilar of his constitutional rights. Aguilar stated that he understood his rights and confirmed that he had sufficient time to discuss the plea and its consequences with his attorney. The prosecutor reminded Aguilar that his attorney was there to answer any questions. Aguilar then pleaded nolo contendere to one count of attempted murder and admitted the firearm discharge and criminal street gang allegations. (§§ 187, subd. (a), 189, 664, 12022.53, subds. (c), (e), 186.22, subd. (b)(1)(C).)
As agreed, the trial court sentenced Aguilar to a prison term of 35 years, consisting of a five-year term for attempted murder, 20 years for the firearm discharge resulting in great bodily injury, and 10 years for the criminal street gang enhancement. The court imposed various fines and fees and awarded Aguilar 1,340 days of presentence custody credit. The court also granted the prosecutor's motion to dismiss the remaining counts.
Aguilar filed a notice of appeal and requested a certificate of probable to challenge the voluntariness of his plea. The trial court granted the certificate.
DISCUSSION
Aguilar contends that he entered his plea because he was worried about the poor health of family members and that he did not understand the advisements given by the prosecutor. The appellate record does not support Aguilar's contentions. Aguilar stated that he understood the advisement of rights and that he had sufficient time to discuss his rights and the consequences of his plea with his attorney. The prosecutor also reminded Aguilar that his attorney was present to answer further questions he might have. Following the plea colloquy, the trial court found that Aguilar's plea was voluntary and knowingly and intelligently made. The court also found a factual basis for the plea.
The transcript of the plea and sentencing proceeding does not disclose or suggest that Aguilar's nolo contendere plea was involuntary. Our review is limited to matters within the appellate record. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 306.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
COFFEE, J.
PERREN, J.
Darrell Mavis, Judge
Superior Court County of Los Angeles
______________________________
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
