P. v. Gutierrez

Filed 12/9/09 P. v. Gutierrez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant was convicted upon her plea of guilty to one count of voluntary manslaughter (Pen. Code, 192, subd. (a)),[1] as charged in an amended information. She admitted an allegation that she personally used a firearm in the commission of that offense ( 12022.5, subd. (a)). Pursuant to a negotiated disposition, appellant received a fixed prison sentence of 21 years in state prison (the aggravated term of 11 years for voluntary manslaughter, plus a consecutive 10-year term for personal use of the firearm). Appellant was 16 years old at the time of the charged offense, and 21 years old at the time of her plea.

At the time of sentencing, appellants Marsden[2] motion to replace her assigned counsel was heard in camera and denied. Appellant requested, and was granted, a certificate of probable cause ( 1237.5) and filed a timely notice of appeal. She challenges the validity of her plea, contending that her plea was not knowingly and intelligently made due to ineffective assistance of counsel, and that her Marsden motion was erroneously denied.

Assigned counsel has submitted a Wende[3] brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that appellant has been advised of her right to personally file a supplemental brief raising any points which she wishes to call to the courts attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109110.)

We find no arguable issues and therefore affirm.

Background

In the early morning hours of March 29, 2004, Eugene Gorenman was found shot to death on a walking path in Fort Funston in San Francisco.[4] He had suffered a gunshot wound to the head and his wallet was missing. His vehicle was located the following day in the Bayview District of San Francisco with its license plates missing.

Investigation of the use of one of the victims credit cards led to the arrest of Jillian McIlvenna, appellants roommate. McIlvenna gave a statement to police stating that she, appellant, Felicia Mehrara, and Marjorie Quispe had encountered Gorenman while in their vehicles at a stop light in the Golden Gate Park area, and told him to follow them to the beach in Fort Funston. Appellant, McIlvenna, and Mehrara got out of their car, as did Gorenman, and while walking on a path, appellant produced a gun and shot Gorenman in the head. Appellant, McIlvenna and Mehrara took Gorenmans wallet and money. Appellant drove the victims Mustang to the Bayview area, with the others following. They removed the license plates and abandoned the victims car.

Marjorie Quispe was granted immunity and at the preliminary hearing testified that: she was with appellant, McIlvenna and Mehrara on the night of the killing; she had remained in her car while the other women had left with the victim; appellant and the others had returned without the victim; and she later observed appellant going through the victims wallet. Quispe also testified that she had followed appellant, who drove the victims Mustang, from Fort Funston to a location where appellant and McIlvenna removed the Mustangs license plates. Appellant, McIlvenna and appellants sister later came to Quispes workplace and told her not to talk about anything that had happened that evening. Appellant told Quispe that if she did anything appellant would have to pop a cap in [her], too.

On April 12, 2008, appellant was charged by information, along with McIlvenna and Mehrara, with conspiracy to commit robbery ( 182, subd. (a)(1)), murder ( 187), robbery ( 211), and carjacking ( 215). It was alleged that she had personally used a firearm ( 12022.5, subd. (a)) in the commission of the conspiracy count, and that she had personally and intentionally used a firearm causing death or great bodily injury ( 12022.53, subd. (d)) in connection with the remaining counts.

On February 6, 2009, the amended information, charging the killing of Eugene Gorenman as voluntary manslaughter was filed, and appellant entered her plea pursuant to the negotiated disposition. The terms and consequences of the plea were set forth on the record. Appellant indicated that she understood and agreed to the terms, including the sentence. The court conducted voir dire of each defendant, including appellant. The court found a voluntary relinquishment of rights by appellant. Counsel stipulated that there was a factual basis for the plea, based on the transcript of the preliminary hearing. Appellant waived time for sentencing, was referred to the probation department for report and recommendation, and sentencing was set for April 3, 2009.

On April 3, 2009, appellant made a motion to replace her assigned counsel. The motion was heard in camera and denied. The court then imposed the agreed upon prison term of 21 years, based on the aggravated term of 11 years for voluntary manslaughter, plus a consecutive 10-year term for personal use of the firearm. A restitution fine of $200 ( 1202.4, subd. (b)) and a suspended parole fee of $200 ( 1202.45) were imposed. DNA testing was ordered ( 296, subd. (a)(1)) and appellant was ordered to pay restitution to the Victims Compensation Board in the amount of $7,500, plus interest at 10 percent per annum ( 1202.4, subd. (f)). She received credit for a total of 1,106 days time served (962 actual days).

Appellant requested, and was granted, a certificate of probable cause ( 1237.5) and filed a timely notice of appeal on June 2, 2009. She alleged that her plea was not knowingly and intelligently made due to ineffective assistance of counsel, and that her Marsden motion was erroneously denied.

Discussion

We have reviewed the record, including the confidential transcript of the Marsden hearing. We find no arguable issue that appellants counsel was ineffective and that her plea was consequently involuntary. To establish a claim of incompetence of counsel, a defendant must establish both that counsels representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsels error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686688, 694695 (Strickland); People v. Benavides (2005) 35 Cal.4th 69, 9293; People v. Ledesma (1987) 43 Cal.3d 171, 215218.) Judicial scrutiny of counsels performance must be highly deferential. (Strickland,supra, at p. 689.) There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. (Id. at p. 690.) The benchmark for judging a claim of ineffective assistance is whether the attorneys conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result. [] . . . [] . . . The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. (Id. at pp. 686, 688.)

Appellants assigned counsel conducted discovery, presented motions on her behalf, cross-examined witnesses at her preliminary hearing, and obtained a negotiated disposition with consequences far less onerous than those she faced if convicted of the original charges.

Our review of the confidential transcript of the Marsden motion also reveals no arguable issues.

Disposition

The judgment is affirmed.

_________________________

Bruiniers, J.

We concur:

_________________________

Jones, P. J.

_________________________

Simons, J.

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[1] All further code references are to the Penal Code unless otherwise indicated.

[2] People v. Marsden (1970) 2 Cal.3d 118.

[3]People v. Wende (1979) 25 Cal.3d 436.

[4] The facts are set forth in the Probation Officers Report and Recommendation. We have also reviewed the relevant portions of the transcripts of the preliminary hearing on March 10, 11, 12, 13, 25 and 28, 2008.