P. v. Lopez
Filed 10/18/13 P. v. Lopez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
DANNY LOPEZ,
Defendant
and Appellant.
B245422
(Los
Angeles County
Super. Ct.
No. LA067690)
ORDER MODIFYING OPINION
[There is no change in judgment]
GOOD CAUSE
appearing, the opinion filed October 16,
2013, in the above entitled matter is hereby
On page 1, the
case No. “BA307784†should be replaced with case No. “LA067690.â€
There is no change
in the judgment.
___________________________________________________________________
BIGELOW, P. J. RUBIN,
J. GRIMES,
J.
Filed 10/16/13 P. v. Lopez
CA2/8 (unmodifed version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
DANNY LOPEZ,
Defendant
and Appellant.
B245422
(Los
Angeles County
Super. Ct.
No. BA307784)
APPEAL from a
judgment of the Superior Court
of Los Angeles County. Martin Herscovitz, Judge. Affirmed.
Alan C. Stern,
under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
_______________________
On
August 8, 2011, defendant
Danny Lopez was charged with attempted murder, assault on a police officer,
shooting at an aircraft and carrying a loaded firearm, together with several
weapons and street gang enhancements.
Following a preliminary hearing, and after being duly advised of his
constitutional rights and the consequences of his plea, defendant pleaded no
contest to two counts of assault on a peace officer with a semiautomatic
firearm (Pen. Code, § 245, subd. (d)(2)). He also admitted gun use
enhancements attached to those counts (Pen Code, §§ 12022.53, 12022.5)). He was sentenced to concurrent terms of25
years in state prison.
Defendant
timely filed a notice of appeal to which was attached a request for certificate
of probable cause. The certificate of
probable cause was denied on November 14,
2012.
title="">[1]
We
appointed counsel to represent defendant on appeal. On April 24,
2013, counsel filed an opening brief stating that he could not find
any arguable issues for appeal. (
436.) On April 25, 2013, we sent a
letter to counsel directing him to send the record on appeal and a copy of the
opening brief to defendant. On the same
date, we sent a letter to defendant inviting him to file a letter or brief raising
any issues he wanted us to consider.
Although we received two letters from defendant asking for additional
time to file a supplemental brief, requests which we granted, we did not
receive any brief or letter from defendant that raised any issues.
As
this appeal is from a no contest plea, we take the facts from the transcript of
the preliminary hearing which is part of the record. On April 15, police officers responded to a
“shots fired†call in the neighborhood in which defendant lived. Officers arrived at the location near Saticoy
St. and Densmore Ave. in Van Nuys where they heard multiple gunshots. Officers called for backup and helicopter
support. After the helicopter arrived over the location, shots were fired in
the air, with two of them hitting the airship. Two police officers were in the
helicopter at the time. The helicopter made an emergency landing at nearby Van
Nuys Airport. Examination of the
aircraft revealed two bullet holes. Jet
fuel was leaking.
Various
witnesses testified or told police that they heard gunshots while defendant was
observed with what appeared to be a rifle pointed in the air. Defendant appeared intoxicated. Police
recovered a blue steel S-K-S rifle at the residence where defendant lived with
his mother and other family members.
Approximately 38 fired cartridge cases were recovered at the scene, 14
of which were in close proximity to each other.
Laboratory reports showed that the spent cartridges came from the rifle
that had been recovered at defendant’s residence, and one bullet that had
lodged in the helicopter was also from that rifle. Forensic specialists were unable to say with
certainty whether fragments of the second bullet that hit the helicopter also
were from the rifle.
On
August 7, 2012, following arraignment on the charges and a series of
continuances primarily to accomplish discovery between counsel, the court
entertained defendant’s motion to relieve his attorney under
118. We have reviewed the transcript of
the motion and conclude that the trial court properly denied it.
On
the same date, defendant entered his plea of no contest to two counts of
assault on a peace officer with a semiautomatic, and he admitted the gun use
enhancements attached to those counts.
Sentencing was continued until October 10, 2012. On that date, when the case was called for
sentencing, defendant’s counsel made a motion to allow defendant to withdraw
his plea on the grounds that it was coerced.
Counsel referred generally to “Marsden information,†which we understand
at least in part was a reference to the earlier denied Marsden motion. Defendant
testified briefly in open court that he felt pressured by his family to change
his plea to no contest. The trial court
denied the motion to withdraw the plea, referring to portions of the plea
transcript on August 7, 2012, in which defendant was advised that he was
facing three life terms with a minimum parole eligibility date of 64
years. At the time of his plea,
defendant stated orally that he was acting freely and voluntarily. The trial court properly exercised his
discretion in denying the motion to withdraw based on defendant’s conclusory
testimony which failed to show the requisite good cause. (Pen. Code, § 1018; People v. Weaver (2004) 118 Cal.App.4th 131, 145-146.)
Defendant
was thereafter sentenced pursuant to the plea agreement and the remaining
counts and enhancements were dismissed.
We
have independently reviewed the record and find no arguable issues on appeal.
DISPOSITION
The
judgment is affirmed.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
GRIMES,
J.
name="_ftn1" title="">[1]
denial of a certificate of probable cause may only be reviewed by way of
petition for extraordinary writ. (
Cal.App.4th 489, 494-495.) No such
petition was filed here. Thus any issues
on appeal would be limited to those permitted by Penal Code section 1237.5.
name="_ftn2" title="">
noted, defendant did not file a supplemental brief even though he was given the
opportunity to do so. However, in his request
for a certificate of probable cause, he stated:
“I wanted to go to trial. I pled only because my public defender refused
to take my case to trial. She told me
she was too busy to try it, that I had no rights and that I had to plead; I
believe I didn’t receive effective assistance of counsel. If counsel had been willing to try my case, I
would not have pled. From what she said,
her unwillingness to try it was not based on the facts of my case but on her
having too much other work to do.â€
Even if we were to treat these points as made in a
supplemental brief on appeal, defendant has failed to establish either that the
Marsden motion should have been
granted or that he received ineffective assistance of counsel.
