P. v. Ayala
Filed 9/4/12 P. v. Ayala CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ALFONSO AYALA,
Defendant and Appellant.
B238806
(Los Angeles
County
Super. Ct.
No. TA119932)
THE COURT:
Alfonso
Ayala (defendant) appeals from the judgment entered following his plea of guilty
to one count of attempted second degree
robbery in violation of Penal Code sections 211 and 664
and a plea of no contest to one count of dissuading
a witness by force or threat in violation of section 136.1, subdivision
(c)(1). Defendant admitted personal use
of a firearm in the commission of count 1 within the meaning of section
12022.53, subdivision (b), and he admitted the truth of the gang allegation
pursuant to section 186.22, subdivision (b)(1)(C).
Pursuant to
a plea agreement, the trial court sentenced defendant to 12 years in state
prison. The sentence consisted of the
midterm of two years in count 1 and an additional 10 years for the firearm-use
enhancement. The trial court stayed
punishment for the gang enhancement. The
trial court imposed a concurrent sentence of one-third the midterm (one year)
in count 2. The trial court ordered a
restitution fine of $200, a parole revocation fine of $200, a court security
fee of $30, and a court construction fee of $40. The trial court granted defendant 93 actual
days of credit and 14 conduct credit days for a total of 107 days.
We
appointed counsel to represent defendant
on this appeal. After examination of the
record, counsel filed an “Opening Brief” containing an acknowledgment that he
had been unable to find any arguable issues.
On May 18, 2012, we
advised defendant that he had 30 days within which to personally submit any
contentions or issues that he wished us to consider. No response has been received to date.
At
defendant’s preliminary hearing, Saul Lopez testified that on the evening of September 11, 2011, he was about to
enter his front door when he saw defendant pass by with a gym bag. Defendant began verbally abusing Lopez. Defendant then pulled a sawed-off shotgun
from the gym bag and told Lopez, “Give me your fucken chain,” referring to the
chain Lopez wore around his neck.
Defendant pointed the shotgun at Lopez’s face. Lopez was very afraid and did not know what
to do. Defendant suddenly left. After a minute, defendant returned and told
Lopez, “Watch. If you snitch me, I’m
gonna fucken get you. It is my
hood.” Lopez was scared, but he reported
the incident to the police the next day.
Defendant lived four houses away from Lopez, and Lopez had seen
defendant associating with the Compton Varrio Segundo (CVS) gang. A gang expert testified that he knew
defendant and that defendant was an admitted active member of the CVS
gang. The expert cited several reasons
for his opinion that the crime was for the benefit of the gang.
On January
20, 2012, defendant filed a notice of appeal in which he indicated that the
appeal was based on the sentence or other matters occurring after the plea, on
the denial of a motion to suppress evidence, on a challenge to the validity of
the plea, and on other bases. In his
request for a certificate of probable cause, defendant asserted that his rights
were violated during sentencing and that he did not know what was going
on. He also felt his sentence was
unfair, and the fact that he did not have an adult record was not
considered. He said he was pressured to
take the deal. The trial court denied
the request for a certificate of probable cause.
As
appellate counsel acknowledges, given that defendant failed to obtain a
certificate of probable cause, his appeal lies only with respect to any
sentencing error or post-plea matters that do not affect the validity of the
plea.
8.304(b).) The record of the taking of
the plea shows that defendant pleaded as indicated in exchange for his
agreed-upon sentence of 12 years and that the plea was made knowingly,
intelligently, and voluntarily.
Defendant chose the offer that gave him a 12-year sentence with two
strikes over an offer of 17 years with one strike.
We have
examined the entire record, including the transcript of the hearing on
defendant’s Marsden motion,
and we are satisfied that defendant’s attorney has fully complied with his
responsibilities and that no arguable
issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The
judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
name="_ftn1" title="">* BOREN, P.
J., DOI TODD, J., ASHMANN-GERST, J.
name="_ftn2" title="">[1] All
further references to statutes are to the Penal Code unless stated otherwise.
