P. v. Chavez
Filed 7/23/13 P. v. Chavez
CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 SEVEN
THE PEOPLE,
Plaintiff and
Respondent,
v.
GARY ANTHONY CHAVEZ,
Defendant and
Appellant.
B243696
(Los Angeles County
Super. Ct. No. VA121614)
APPEAL from a judgment of the Superior Court of
County,
Debra
Cole-Hall, Judge. Affirmed.
Gary Anthony Chavez, in pro. per;
and David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
___________________________________
In September 2011 Gary Anthony Chavez was charged in a
felony complaint for extradition with the first
degree murder of Alvina Jiminez (Pen. Code, § 187, subd. (a)),
circumstance allegation the murder was intentional and involved the infliction
of torture (§ 190.2, subd. (a)(18)) and separate allegations he had used two deadly
weapons (a knife and a sledge hammer) in committing the crime (§ 12022, subd. (b)(1)). A no-bail bench warrant was issued.
On October 20, 2011 Chavez
appeared in court, pleaded not guilty and denied the special allegations. He was remanded into custody.
On June 14, 2012
represented by appointed counsel, Chavez entered a negotiated plea of no
contest to first degree murder, orally and in writing, in return for a sentence
of 25 years to life and dismissal of the special circumstance and weapon-use
allegations. At the time he entered his
plea, Chavez was advised of his constitutional rights and the nature and
consequences of the plea, which Chavez stated he understood. Defense counsel joined in the waivers of
Chavez’s constitutional rights. The trial
court expressly found Chavez’s waivers and plea were voluntary, knowing and
intelligent.
On August 22, 2012 Chavez’s
motions to relieve his appointed counsel (People
v. Marsden (1970) 2 Cal.3d 118)
and to withdraw his plea were heard and denied.
On August 30, 2012 the trial court sentenced Chavez to
a term of 25 years to life in accordance with the
credit of 250 days (218 actual days and 32 days of conduct credit). The court ordered Chavez to pay a $40
court security fee, a $30 criminal conviction assessment, $390 in attorney
fees, a $240 restitution fine and $5,384.63 to the State Victim Compensation
Board. The court imposed and suspended a
parole revocation fine pursuant to section 1202.45. The special circumstance and weapon-use
allegations were dismissed pursuant to the plea agreement.
Immediately after sentencing, Chavez
attempted to make a peremptory challenge in propria persona to the trial judge
(Code Civ. Proc., § 170.6), which the court denied as untimely. Also acting in propria persona, Chavez
demanded to be allowed to file two hand-printed documents: (1) A “Notice of MOTION to
Withdraw PLEA,†in which Chavez requested to be allowed to withdraw his plea pursuant
to section 1018; and (2) a “JUDICIAL NOTICE,†in which he requested the
court take judicial notice of the accompanying motion under Evidence Code
section 450. The trial court accepted
the documents for filing but did not expressly rule on their merits.
Chavez filed a timely notice of
appeal, challenging “the legality of the proceedings, whereby defendant
Chavez’s Marsden motion, regarding
his desire to withdraw his plea, was denied.â€
The trial court granted Chavez’s request for a certificate of probable
cause without explanation and, from our perspective, with no basis in the
record. We appointed counsel to
represent Chavez on appeal.
After examination of the record,
counsel filed an opening brief in which no issues were raised. On March 4, 2013 we advised Chavez he had 30 days within
which to personally submit any contentions or issues he wished us to consider. On March 13, 2013 Chavez
filed a hand-printed supplemental brief with an attached exhibit. Chavez also subsequently filed two requests
for leave to file an additional supplemental brief and to be appointed new
appellate counsel, all of which we denied.
In his supplemental brief Chavez
asserted defense counsel had “bribed†him to accept the plea agreement by
purchasing a book for him.
We have examined the entire record
and are satisfied Chavez’s attorney has fully complied with the
responsibilities of counsel and no arguable issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 277-284
[120 S.Ct. 746, 145 L.Ed.2d 756]; People
v. Kelly (2006) 40 Cal.4th 106, 112-113; People v.
his plea was not knowing, voluntary and intelligent. The record also fails to demonstrate defense
counsel provided ineffective assistance at any time during the proceedings in
the trial court. (Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052,
80 L.Ed.2d 674].) Finally, with respect
to Chavez’s contention he was somehow improperly induced to enter a plea in
this case while in custody, this issue cannot be addressed on appeal because it
relies on matters outside the appellate record.
If cognizable at all, Chavez’s claim must be pursued by a different,
appropriate procedure.
The judgment is affirmed.
PERLUSS,
P. J.
We concur:
WOODS,
J.
ZELON,
J.
name="_ftn1" title="">[1] Statutory references are to the Penal Code unless
otherwise indicated.
