P. v. Alvarez
Filed 7/18/12 P. v. Alvarez CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MARCO
ANTONIO ALVAREZ,
Defendant and Appellant.
A133618
(Sonoma
County
Super. Ct.
No. SCR551635)
Defendant
was sentenced to an eight-year prison term following his plea of no contest to
one count of assault with a deadly weapon
and admission of a gang enhancement. Execution of sentence was suspended and
defendant was placed on probation for four years. Defendant filed a
conviction challenging the sentence or other matters occurring after the plea.
Pursuant to People v. Wende (1979) 25
Cal.3d 436, defense counsel has filed a brief raising no issues, asking this
court to conduct an independent review of the record to determine if there are
any issues deserving of further briefing. Counsel has also notified defendant
he can file a supplemental brief with
the court. No supplemental brief has been received. Upon review of the record,
we conclude no arguable issues are
presented for review and affirm the judgment.
Background
The
following facts relating to the underlying conviction and gang enhancement are
taken from the preliminary hearing: On December
26, 2008, the victim was confronted by defendant and two
accomplices. The men, including the defendant, yelled “South Side†at the
victim as they approached. One of the men “shoulder-checked†or bumped into the
victim and then punched him in the face. Defendant hit the victim in the head
with a glass bottle, causing a laceration on the victim’s cheek and breaking
multiple bones on his face. A deputy sheriff, who was identified as a gang
expert, testified that he believed defendant was an active member of the Sureño
street gang based on prior police contacts in which defendant was associated
with known gang members, as well as a prior admission of gang membership and
photographs of defendant dressed in blue, making gang-related signs with his
hands.
Defendant
was charged with one count of assault with a deadly weapon (Pen. Code,
§ 245, subd. (a)(1)),
one count of misdemeanor assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(1)), and one count of participation in a
criminal street gang (§ 186.22, subd. (a)). In addition to
enhancement allegations (§§ 1192.7, subds. (c)(8) & (23),
12022.7, subd. (a), 667.5, subd. (c)(8)), the information also
alleged that the assault with a deadly weapon was committed for the benefit of,
at the direction of and in association with a
subd. (b)(1)(B) & (C)).
On
August 5, 2011, defendant pled no contest to assault with a deadly weapon and
admitted a section 186.22, subdivision (b) gang enhancement. In exchange for
his plea, it was agreed that the remaining counts and enhancements would be
dismissed. There was no agreement with regard to the sentence defendant would receive.
Defendant
was sentenced to the midterm of three years for the assault with a deadly
weapon conviction and five years consecutive for the gang enhancement for a
total prison term of eight years. Execution of sentence was suspended and
defendant was placed on four years’ probation with numerous conditions,
including that he serve one year in county jail and he register with law
enforcement pursuant to section 186.30.
Defendant filed a timely notice of appeal.
Discussion
By
entering a plea of no contest, defendant admitted the sufficiency of the
evidence establishing the crime, and therefore is not entitled to review of any
issue that goes to the question of whether he is guilty or not guilty. (
37, 42.) Because defendant has not obtained a certificate of probable cause, he
cannot contest the validity of his plea. Thus, only issues relating to matters
arising after the plea was entered are cognizable on appeal. (§ 1237.5;
Cal. Rules of Court, rule 8.304(b)(4).)
We
find no error with regard to the sentence imposed and no abuse of discretion
with respect to the terms and conditions of defendant’s probation. Although
defendant adamantly denied his gang membership in a letter written to the court
prior to his sentencing hearing, his admission to the gang enhancement as well
as the testimony of the gang expert at the preliminary hearing amply support
the gang registration requirement.
Defendant
was represented by counsel throughout the proceedings and we find no indication
in the record of ineffective assistance of counsel.
Disposition
The
judgment is affirmed.
_________________________
Pollak,
Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
All statutory references are to the Penal Code unless otherwise noted.
Section 186.30 provides in relevant part: “(a) Any person described in
subdivision (b) shall register with the chief of police of the city in which he
or she resides, or the sheriff of the county if he or she resides in an
unincorporated area, within 10 days of release from custody or within 10 days
of his or her arrival in any city, county, or city and county to reside there,
whichever occurs first. [¶] (b) Subdivision (a) shall apply to any person
convicted in a criminal court or who has had a petition sustained in a juvenile
court in this state for any of the following offenses: [¶] . . .
[¶] (2) Any crime where the enhancement specified in subdivision (b) of
Section 186.22 is found to be true. . . .â€
