P. v. Barragan

Filed 10/29/09 P. v. Barragan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Juan Reyes Barragan appeals from judgment after his convictions in two cases in which he pled no contest to all charges. In case No. 2007023175, appellant was convicted of child abuse. (Pen. Code, 273a, subd. (a).)[1] In case No. 2007025432, he was convicted of attempted murder ( 664/187, subd. (a)), kidnapping (207, subd. (a)); assault with a firearm ( 245, subd. (a))(2), criminal threats ( 422), possession of a short barreled shotgun ( 12020, subd. (a)(1)), cruelty to an animal ( 597, subd. (a)), and he admitted that he used a firearm. ( 12022.5, subd. (a), 12022.53, subd. (b).)

The trial court sentenced appellant in the two cases to an aggregate term of 26 years 4 months, consisting of the low term of 5 years for the attempted murder, enhanced by 20 years for use of a firearm, concurrent shorter terms for the remaining counts in that case, and a consecutive 16-month term in the child abuse case.

We appointed counsel to represent appellant on appeal. After examining the record, counsel filed an opening brief in this court raising no issues and requested that we independently examine the record pursuant to People v. Wende(1979) 25 Cal.3d 436. Appellant filed a supplemental letter brief. He contends that he should have been given a Spanish language interpreter, that he was not informed of his rights at the time of his arrest pursuant to Miranda v. Arizona (1966) 384 U.S. 436(Miranda), and that his counsel rendered ineffective assistance because he did not spend sufficient time discussing potential defenses with appellant, he did not have the shotgun tested and did not take photographs to prove that appellant did not shoot the gun in the way the victim described. Appellant's first contention is without merit, and the others are foreclosed by his guilty plea. We affirm

In May 2007, appellant physically abused and neglected a child. He was charged with felony child abuse ( 273a, subd. (a)) and felony corporal injury to a child ( 273d, subd. (a)). He pled guilty to one count of felony child abuse ( 273a, subd. (a)) in exchange for dismissal of the corporal injury count.

In July 2007, appellant walked up behind a ranch mechanic named Antonio Guerrero. Appellant held a sawed-off shotgun to Guerrero's head and told him to return appellant's gun. ( 12020, subd. (a)) Appellant was under the influence of methamphetamines and he believed that Guerrero and two other workers had taken his gun from a car that appellant kept parked on the ranch.[2]

Appellant knocked Guerrero to the ground and then shot off the leg of a chicken. ( 597, subd. (a).) He told Guerrero that the next round was for him, and then appellant fired a shot into the air toward the roof of a large building. ( 245, subd. (a)(2).)

Appellant forced Guerrero into Guererro's car at gunpoint, and made Guerrero drive around looking for the other two workers. ( 207, subd. (a).) They drove around but did not find the other men. Along the way, they went to two stores and a gas station and bought a telephone card, chips and beer. While in public, appellant kept the shotgun hidden in his shirt and warned Guerrero that he would kill him if he asked for help or did not follow instructions. ( 422.)

When they returned to the ranch, they saw sheriff's deputies. Guerrero followed appellant's instructions to turn the car around and drive away. Appellant told Guerrero he would kill him if he pulled the car over, but Guerrero did eventually stop. When he stopped, appellant pointed the shotgun into Guerrero's ribs and pulled the trigger. The shotgun jammed. ( 664/187, subd. (a).)

Deputies found ammunition and methamphetamine paraphernalia in appellant's van and found ammunition, a glass pipe and the missing gun in appellant's car. Video surveillance from three stores corroborated Guerrero's account, as did the presence of one spent casing and an injured chicken in the ranch yard. No other casings were found, and no damage was found to the roof of the large ranch building.

Appellant was initially charged with kidnapping with personal use of a shotgun, assault with a firearm, and criminal threats with use of a firearm. The remaining charges were added after the preliminary hearing based on the victim's testimony. Appellant pled not guilty to all charges at the arraignment and he waived jury. He later changed his plea to guilty on all six charges in the kidnapping case.

Appellant's contention that he needed a Spanish language interpreter is contradicted by his statements in open court. He informed the trial court that he understood the proceedings perfectly and that he did not need a Spanish language interpreter.

Appellant's remaining contentions are foreclosed by his guilty plea. A plea of guilty admits all matters essential to conviction. (People v. Massey (1976) 59 Cal.App.3d 777, 780.) The existence of a certificate of probable cause cannot widen the scope of review. (People v. Hoffard (1995) 10 Cal.4th 1170, 1178.) A guilty plea forecloses a claim based on failure to give Miranda advisements. (People v. DeVaughn (1977) 18 Cal.3d 889, 896.) Claims of ineffective assistance of counsel based on failure to investigate a defense are also foreclosed. (People v. Marlin (2004) 124 Cal.App.4th 559, 567.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Edward F. Brodie, Judge

Superior Court County of Ventura

______________________________

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code.

[2]Appellant also kept a van parked on the ranch.