Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF232395A, Darryl B. Ferguson, Judge.
Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Kane, J., and Poochigian, J.
Pursuant to a plea agreement, appellant, Rolando Jesus Gudino, on July 22, 2010, pled nolo contendere to one count of dissuading a victim/witness from reporting a crime (Pen. Code, § 136.1, subd. (b)(1)) and admitted an allegation that he committed that offense for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members, within the meaning of section 186.22(b)(4). Also, pursuant to the plea agreement, the court dismissed another count of violating section 136.1(b)(1) and an accompanying section 186.22(b)(4) allegation.
All references to dates of events are to dates in 2010.
All statutory references are to the Penal Code. We generally refer to subdivisions of sections of the Penal Code, and to smaller components of those subdivisions, in abbreviated form, e.g., sections 136.1(b)(1) and 186.22(b)(4).
On September 14, appellant filed a motion to withdraw his plea (§ 1018). On September 22, following a hearing, the court denied the motion. Moments later, the court imposed a term of seven years to life in prison, pursuant to section 186.22(b)(4)(C).
On October 12, appellant filed a timely notice of appeal and the court granted appellant’s request for a certificate of probable cause (§ 1237.5).
Appellant’s appointed appellate counsel has filed an opening brief, which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant, in response to this court’s invitation to submit briefing, has filed a brief in which he argues, as best we can determine, that the evidence presented at the preliminary hearing was insufficient to support his conviction in the instant offense and the true finding on the accompanying section 186.22(b)(4) allegation. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Our factual statement is taken from the transcript of the preliminary hearing.
“LL” and “RL” own a taco restaurant in Ivanhoe. LL testified that on January 23, when she arrived to open the business, she found the door unlocked and the inside of the restaurant in disarray. She heard noises and went back outside, where she saw a person jumping over the fence in back of the restaurant. She recognized the person as someone who had been in the restaurant before and who lived approximately one block away.
LL and RL were identified by their initials in this manner at the preliminary hearing at the request of the prosecutor.
RL testified to the following: He arrived at the restaurant shortly after LL. Prior to January 23, he had frequently seen the intruder and appellant together. RL went to appellant’s residence approximately one-half block from the restaurant and asked appellant if he knew where the intruder was. Appellant said he did not know. RL said he was going to contact the police. He then walked to the police station approximately two blocks away and reported the break-in.
RL further testified to the following: Later on January 23, he encountered appellant at the restaurant, at which time appellant asked RL, “‘Who’s the rat?’” RL thought appellant was asking if he (RL) had called the police. RL said he had done so. RL felt threatened and intimidated by appellant’s question.
Tulare County Sheriff’s Deputy Aaron Buckmaster testified that at one point on January 23, while conducting an investigation of the break-in at the restaurant, he went to a residence approximately one block from the restaurant where he encountered RL and the “suspect of the burglary” standing in the driveway. The deputy took the suspect into custody, and placed him in the back of his patrol car. Thereafter, a “field showup” was conducted, at which LL indentified the person in custody as the intruder. When Deputy Buckmaster had the intruder back in the patrol car, appellant approached. He was “throwing up gang signs” as a means of “communicating with [the intruder] through hand signals.” The deputy ordered appellant to leave the area, at which point appellant, in response, pantomimed smoking a cigarette, “indicating I’m [going to] smoke you.” Appellant’s gesture was “how you tell somebody through hand signs that I’m [going to] kill you.”
The remainder of our factual statement is taken from Deputy Buckmaster’s testimony.
Appellant had multiple tattoos, including the letters “SSK, ” which stand for South Side Kings, a “southern gang clique.” Appellant admitted to Deputy Buckmaster that he was a member of the South Side Kings.
Motion to Withdraw Plea
In support of his motion to withdraw his plea, appellant submitted a declaration in which he averred as follows: he “did not have enough time to fully reflect on the decision whether to enter a plea of no contest”; he “never considered the possibility [he] could face the rest of [his] entire life in prison”; and he entered his plea “rashly and unintelligently and uninformed.”
In denying appellant’s motion, the court stated: “The defendant was fully advised of the consequences of his plea. There were at least two times in reading the transcript that I fully advised him that he was facing seven years to life in prison. Buyer[’]s remorse is not a valid reason to allow withdrawal of plea.... [¶] He was asked, if I’m not mistaken, ... before I took the plea, whether there was anything more he wanted to discuss with his attorney before I took the plea.”
The record on appeal does not contain a reporter’s transcript of the hearing at which appellant entered his plea.
DISCUSSION
Appellant’s claim that the evidence was insufficient to support his conviction and the true finding on the section 186.22(b)(4) allegation is foreclosed by his plea. (Cf. People v. Marlin (2004) 124 Cal.App.4th 559, 566-567 [defendant who pleads guilty is not entitled to review on merits inasmuch as he admits sufficiency of evidence to establish crime and entry of plea forecloses consideration of issues going merely to guilt or innocence].)
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.