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The People v. Gonzalo Ivan Ruiz

March 23, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GONZALO IVAN RUIZ, DEFENDANT AND APPELLANT.



Super. Ct. No. CM030425

The opinion of the court was delivered by: Duarte, J.

P. v. Ruiz

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Defendant filed a supplemental brief contending the court erred in denying his motion to withdraw his plea and counsel provided ineffective assistance. We address these issues, in addition to undertaking a review of the record as required by Wende, and affirm the judgment.

BACKGROUND

Defendant, Gonzalo Ivan Ruiz, a known Sureno street gang associate, was involved in a fight with rival Norteno street gang members. Afterwards, in an effort to lure his rivals into the parking lot, defendant found their car at an apartment complex and vandalized it. Andres Moreno, who was affiliated with the Nortenos, and other apartment residents came into the parking lot and approached defendant. Defendant had a .22-caliber revolver and fired at least three shots into the crowd. One of the shots hit Moreno.

Defendant was charged with vandalism (Pen. Code,*fn1 § 594, subd. (a)) with enhancements alleging that he personally used a firearm (§§ 12022.5, subds. (a) & (d); 1192.7, subd. (c)(8)) and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). He was further charged with assault with a firearm (§ 245, subd. (a)(2)), with additional enhancements alleging that he personally used a firearm (§§ 12022.5, subds. (a) & (d); 1192.7, subd. (c)(8)) and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)); lastly, he was charged with resisting a peace officer (§ 148, subd. (a)(1)).

As part of a negotiated plea, defendant pled no contest to assault with a firearm, and admitted the personal use and gang enhancements. In exchange, the remaining charges were dismissed with a Harvey*fn2 waiver and the parties agreed to a stipulated sentence of the upper term for each offense and allegation, for an aggregate term of 19 years. Defendant had been offered an alternative disposition that required him to plead to two separate strike offenses, rather than just one, for a total sentence of 15 years, 8 months, but had chosen "not to be saddled with two strikes."

At the sentencing hearing, defendant indicated he wanted to withdraw his plea "to get a better deal." The court denied defendant's motion, finding it was a case of "buyer's remorse" and there was no good cause shown.

Defendant was sentenced in accordance with the plea. Defendant was ordered to pay a restitution fine of $3,800 and the court reserved jurisdiction on the issue of victim restitution. Various fines and fees were imposed and defendant was awarded 280 days of actual credit, plus 42 days of section 2933.1 credits, for a total of 322 days of credit.

Defendant sought a certificate of probable cause, which was denied.

Appointed counsel filed an opening brief setting forth the facts of the case and requesting this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a supplemental brief, claiming the court ...


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