P.
v. Medrano
Filed
10/19/12 P. v.
Medrano CA4/2
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANK ALEX
MEDRANO,
Defendant and Appellant.
E055978
(Super.Ct.No.
FVI1100400)
OPINION
APPEAL
from the Superior Court of San Bernardino
County. Jules E. Fleuret, Judge. Affirmed.
Patricia
Ihara, under appointment by the Court of
Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
INTRODUCTION
On
February 22, 2011, a complaint charged defendant and appellant Frank Alex
Medrano with (1) carrying a loaded firearm by a gang member under
1); possession of a firearm by a felon with a prior under section 12021,
subdivision (a)(1) (count 2); and (3) street terrorism under section 186.22,
subdivision (a) (count 4). As to counts
1, 2, and 4, the complaint also
alleged a prior strike offense under section 1170.12, subdivisions (a) through
(d), and section 667, subdivisions (b) through (i); and three prison prior
convictions under section 667.5, subdivision (b). As to counts 1 and 4, the complaint further
alleged a prior serious felony conviction under section 667, subdivision
(a)(1).
On
August 30, 2011, defendant pled guilty to count 4 and admitted the strike
allegation, in exchange for a stipulated sentence of the upper term of three
years, doubled for a total term of six years.
The remaining charges and allegations were dismissed.
On
November 17, 2011, defendant requested to withdraw his guilty plea. The trial court appointed a conflict panel
attorney to represent him.
On
March 23, 2012, after hearing defendant’s motion to withdraw his plea, the
trial court denied the motion.
Thereafter, the court sentenced defendant to the stipulated sentence of
six years.
On
April 3, 2012, defendant filed a timely notice of appeal and requested a
certificate of probable cause. The court
denied the request for a certificate of probable cause. On April 12, 2012, defendant filed an amended
notice of appeal. The notice indicated
that the appeal was based on the sentence or matters occurring after the plea.
STATEMENT OF FACTS
Factual Background
On
February 17, 2011, at 10:41 p.m., San Bernardino County Deputy Sheriff J.
Rangel and his partner were in an unmarked patrol car, traveling northbound on
Arrowhead Lake Road. A vehicle in front
of them crossed into oncoming traffic before slowing down to make a
rear brake lamp was not working. Deputy
Rangel initiated a traffic stop.
A
woman, Malisha Helm, was in the driver’s seat and defendant was in the front
passenger seat. Deputy Rangel’s partner
approached the driver’s side and asked both occupants for identification. The partner told defendant to hand his
identification to Deputy Rangel who was on the passenger side of the car. Defendant had to open the car door to hand
his identification to Deputy Rangel because the car window did not open.
The
patrol car’s spotlights and headlights partly illuminated the interior of the
car. Deputy Rangel used his flashlight
to look inside the car; he spotted a handgun just below the passenger’s seat
near defendant’s right leg. The gun was
chrome with a pearl white handle, a two-shot Derringer style handgun loaded
with two .38 special rounds. The hammer
was cocked back ready to be fired.
Both
officers drew their weapons. Both Helm
and defendant cooperated with the officers’ demands and got out of the
car. The officers handcuffed and
arrested both Helm and defendant.
Sheriff’s dispatch advised Deputy Rangel that defendant was currently an
armed and dangerous parolee at large.
Deputy
Rangel read defendant his Miranda
and asked him about the gun. Defendant
told the deputy that he did not know the gun was there and that it was not
his. Defendant said that he met Helm a
week prior through some “homies†and “he made her his girlfriend.†She came to pick defendant up from his
mother’s house just three minutes earlier.
They were going to see some friends in Victorville. Defendant denied that the gun belonged to
Helm.
Defendant
was a prior documented Chino Sinner gang member; he also admitted his
membership in the gang. His moniker was
Joker. Defendant told Deputy Rangel that
he does not “gang bang†anymore. The
deputy mentioned that Helm was a documented affiliate of the Eastside Victoria
gang, implying that defendant and Helm were in rival gangs. Defendant said that he knew who Helm used “to
run with,†but that she was “cool.â€
Helm
told Deputy Rangel that defendant was not her boyfriend but was just a
friend. She met him a month ago through
“one of the homies.†She confirmed that
she picked him up a couple of minutes before the police pulled her over; they
were on their way to visit friends in Victorville. She denied that the gun in the car belonged
to her; she did not know anything about the gun. She had been driving her car all day to
different places and probably would have seen the gun had it been there. Helm said she used to run with Eastside
Victoria, but has not seen anyone from that gang since 2007.
Defendant
has a big “Sureno†tattoo on his back. A
field identification gang card documenting the contact on the day of the arrest
indicates that defendant had “walked in†the Chino Sinners gang when he was 10
years old and had never been jumped out.
He was in good standing, but not active.
On
August 30, 2011, defendant pled guilty to street terrorism, and admitted a
prior strike with a stipulated sentence to the upper term of three years,
doubled under the three strikes law, for a total term of six years. On the form, defendant initialed the box
indicating that no one had used any duress or undue influence of any kind to
convince him to plead guilty. Defendant
initialed the box indicating that he was not under the influence of any drugs
or medicine which could interfere with his ability to understand what he was
doing. Defendant also initialed the box
indicating that he had sufficient time to consult with counsel.
During
the hearing, defendant agreed that he read and understood his rights that were
printed on the plea form and waived those rights. When the trial court questioned defendant
whether he had sufficient time to talk to counsel about pleading guilty and
admitting the strike, defendant stated that he needed more time to consult with
his attorney. The court, therefore,
paused the proceeding to give defendant more time with his attorney.
After
the proceedings resumed, the court asked defendant if he had any questions or
concerns that he wished to ask the court about the plea. Defendant responded, “No,†and pled guilty to
the crime of street terrorism. When the
court asked defendant if he admitted the prior strike allegation, proceedings
were paused once more at defense counsel’s request. After the proceedings resumed, defendant
admitted that he committed a felony assault in 1999, a prior serious or violent
felony.
Postplea Proceedings
On
October 27, 2011, at a postplea hearing, defendant, through counsel, requested to
withdraw his guilty plea. The prosecutor
informed the court that she believed that this request was a “stall tacticâ€
because defendant wanted a continuance of the sentencing hearing. When asked whether defendant wanted a
continuance or to withdraw his plea, defendant stated that he really wanted a
continuance because his mother was sick with heart problems. Defendant explained that four days after the
court took his guilty plea, he told defense counsel that he wanted to withdraw
his plea. However, if defendant were
able to get a continuance of his sentencing hearing date, he was “more than willing
to just go with [the plea.]†The trial
court granted a continuance until November 17, 2011.
Motion to Withdraw the Plea
Defendant
moved to withdraw his plea on the grounds that defense counsel pressured him to
take the deal and misadvised him that he could not back out of the deal after
he had signed the written plea form.
Defendant claimed that his counsel was ineffective for failing to make
any effort to investigate whether there was exculpatory evidence, such as
fingerprints or a witness. Moreover, at
the time of his plea, defendant was taking a pain medication.
At
the hearing on the motion, defense counsel testified that defendant had been
indecisive after taking the plea. The
morning of the plea proceeding, counsel spoke with defendant about going
through with the plea for at least an hour.
Defendant went “back and forth†for most of the day. Counsel informed defendant that he was
annoying the trial court.
During
one of the off-the-record discussions, defense counsel told defendant, “We’re
in the middle of it right now,†but did not think he said, “You can’t stop the
plea now.†Defendant told counsel that
he did not want to go through with the plea during a pause in the proceedings,
but when the plea was taken, counsel did not recall hearing defendant say
that. Ultimately, defendant decided to
go ahead with the plea agreement.
In
trial counsel’s opinion, defendant “definitely understood his constitutional
rights,†and was “definitely a knowledgeable defendant about how the system works.†If defendant did not want to take the plea,
he would have refused the plea. Defense
counsel said he never told a client that he had to go through with a plea if he
did not want to. Counsel was confident
that defendant entered the plea freely, voluntarily, and intelligently.
Defendant’s
father was in the courtroom during the plea proceedings. During or just before the first recess in the
proceeding, he heard his son say that he did not want to take the plea and
heard defense counsel tell his son that they were in the middle of the plea and
could not go back at this point. During
the second recess in the proceeding, defendant’s father guessed that they were
talking about the plea but could not hear what was said. Because the father was advising his son not
to take the deal, the father did not believe defendant told defense counsel
that he wanted to go through with it.
Defendant
testified that he signed the plea form but had changed his mind when the court
was taking his plea in court. Defendant
stated that he told the judge, “Your Honor, I do not want this deal.†The judge asked defendant if he wanted to
speak to his attorney, and he said yes.
When defendant told his attorney that he did not want to take the deal,
counsel tried to dissuade defendant and told him he could not back out because
he had already signed the plea form.
Based on what counsel told him, defendant felt he had to go through with
the plea.
Before
the second recess, defendant stated that he was emotional and told the judge,
“Man, I don’t want this deal.†The judge
sent defense counsel back to talk with defendant. Defense counsel told defendant that he had to
stop doing this, and he was going to “piss the judge off.†At that time, defendant was taking pain
medication, which he believed affected his mental status.
Defendant
admitted that he had represented himself in another case a month prior to being
arrested in this case, and had entered into a plea agreement. Pursuant to that agreement, he was released
from custody for time served. Defendant
admitted that he had previously asked the court for a continuance and said that
if he could not get one, he was going to ask to withdraw his plea. Defendant, however, stated, “that wasn’t the
case.†He filed the motion to withdraw
the guilty plea because he felt that the deal was “not good,†and he did not
want the deal in the first place.
The
trial court denied defendant’s motion to withdraw his plea. It found that defendant was a “very forceful,
direct-speaking person†who had displayed sophistication in the court. The judge had personally observed defendant
at the plea proceeding. Defendant did
not look confused or coerced by his lawyer.
Moreover, he did not hesitate in his responses during the taking of the
plea. The court found that there was no
evidence that defendant was confused or forced into the plea. The judge did not find defendant’s testimony
to be credible.
ANALYSIS
After defendant appealed, and
upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority
of People v. Wende (1979) 25 Cal.3d
436 and Anders v. California (1967)
386 U.S. 738 setting forth a statement of the case, a summary of the facts, and
potential arguable issues, and requesting this court to undertake a review of
the entire record.
We
offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. Pursuant to the mandate
of People v. Kelly (2006) 40 Cal.4th
106, we have conducted an independent review of the record and find no arguable
issues.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All statutory references are to the Penal Code
unless otherwise specified.
name="_ftn2" title=""> [2] Since defendant pled guilty, the parties
stipulated that the discovery in the case contained the factual basis of the
plea.
