P. v. Vielmas





















Filed 10/19/10 P. v. Vielmas CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 >



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL VIELMAS, Defendant and Appellant.

E048764 (Super.Ct.No. RIF134953) OPINION

APPEAL
from the Superior Court
of Riverside
County. Janice
McIntyre, Judge. (Retired judge of the
Riverside Super. Ct. assigned by
the Chief Justice pursuant to art VI, § 6 of the Cal. Const.) Affirmed.

Harry
Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund
G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Lynne G.
McGinnis, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and
Respondent.

Defendant, Jose Manuel Vielmas,
challenges his conviction on one count of participating in a criminal street gang (Pen. Code, §
186.22)^[1] and negotiated sixteen-month prison sentence
after he pled guilty and then sought unsuccessfully to withdraw his plea. Specifically, defendant argues: 1) the trial
court abused its discretion when it denied defendant's motion to withdraw his
guilty plea because it both applied the wrong standard and failed to recognize
that his cognitive impairment precluded a knowing and voluntary plea; and 2)
the plea lacked the factual basis required by section 1192.5. As discussed below, we reject these claims
and affirm the conviction.

>Statement
of Facts and Procedure

On
February 23, 2007, around 10:20 p.m., Riverside County Sheriff Deputies
responded to a complaint about graffiti.
They saw fresh gang graffiti on a fence, indicative of a particular
criminal street gang. The reporting
party described the suspect as a Hispanic male in his 20's driving a minivan.

A
few minutes later, the deputies saw a gray minivan pull out of a driveway. The deputies recognized defendant in the
right front passenger seat. He was a
known member of the street gang indicated in the graffiti. The deputies followed the van and called for
backup. When the van stopped, defendant
got out and hopped the fence to a home that was a few houses away from his
residence. Defendant was detained in the
back yard of his residence. The other
occupants of the van were detained at gunpoint at the van.

A
can of blue spray paint was found on the floor in front of the front passenger
seat of the van, as well as blue paint on the middle bench seat and seat belt
buckle. A can of black spray paint was
found on the ground just outside the front passenger door. This paint matched the fresh graffiti on the
fence.

Appellant
had previously admitted his gang membership, had gang tattoos on his stomach
and right leg, and had previous gang-related arrests and police contacts.

On
March 23, 2007, the People
filed a felony complaint charging defendant and two codefendants: in Count 1 with conspiracy to commit felony
vandalism (§§ 182, subd. (a)(1) & 594, subd. (b)(1)) with a gang sentencing
enhancement (§186.22, subd. (b)); in Count 2 with participating in a criminal
street gang (§ 186.22); and in Count 3 with misdemeanor resisting arrest (§
148, subd. (a)(1)).

On
October 24, 2007,
defendant pled guilty to Count 2, waived his right to a probation report and
requested immediate sentencing. The
court sentenced defendant to the negotiated term of 16 months, with defendant
to surrender one month later.

On
November 27, 2007,
defendant was represented by newly retained counsel, who orally moved to
withdraw the plea.^[2] Defendant's motion was based on â€