IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
March 23, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
GONZALO IVAN RUIZ, DEFENDANT AND APPELLANT.
Super. Ct. No. CM030425
The opinion of the court was delivered by: Duarte, J.
P. v. Ruiz
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 erred in denying his motion to withdraw his plea and counsel was ineffective in his representation of defendant.
Where a defendant makes a motion to withdraw his plea on grounds that challenge the validity of the plea, he may not appeal the denial of the motion without first obtaining a certificate of probable cause. (People v. Ribero (1971) 4 Cal.3d 55, 63-64, superseded by statute on other grounds as stated in In re Chavez (2003) 30 Cal.4th 643, 655-656.) Here, defendant sought to withdraw his plea to "get a better deal." This claim goes to the validity and nature of the plea agreement. As such, in the absence of a certificate of probable cause, defendant may not appeal this issue.
As to his claim of ineffective assistance of counsel, defendant claims without any explanation that counsel failed to file "critical" motions. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance fell below a standard of reasonable competence, and that there is a reasonable probability the result would have been more favorable to the defense in the absence of counsel's deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674].) The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. (People v. Harris (1993) 19 Cal.App.4th 709, 714.) The paucity of facts signals that defendant has not met his burden.
Based on the claim as presented, we question whether this claim of ineffective assistance of counsel is cognizable on direct appeal. The claim that counsel failed to file motions of an unknown nature that would have been "critical" to defendant's case in some unknown manner does not appear to "go to the legality of the proceedings, but went instead to the question of defendant's guilt or innocence." (People v. Marlin (2004) 124 Cal.App.4th 559, 566, citing People v. Hunter (2002) 100 Cal.App.4th 37, 42.)
Finally, defendant waived any claims related to his guilt or innocence by accepting the plea bargain. "He knowingly gave up [any] defense in order to take advantage of a plea bargain. He cannot revive it now by claiming his attorney was ineffective for not presenting it." (People v. Marlin, supra, 124 Cal.App.4th at p. 567.)
Having undertaken an examination of the entire record, including allocation of credit, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur: ROBIE , Acting P. J. BUTZ, J.