People v. Diaz CA3 ( 2015 )

Filed 12/8/15 P. v. Diaz 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C078192
Plaintiff and Respondent, (Super. Ct. No. 13F05311)
v.
CHARLES MOISES DIAZ,
Defendant and Appellant.
Appointed counsel for defendant Charles Moises Diaz has asked this court to
review the record to determine whether there exist any arguable issues on appeal.
(People v. Wende (1979) 25 Cal. 3d 436.) Finding no arguable error that would result in a
disposition more favorable to defendant, we will affirm the judgment.
I
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal. 4th 106, 110, 124.)
1
Defendant was charged by amended information with two counts of attempted
murder. (Pen. Code, §§ 187, 664, subd. (a); unless otherwise stated, statutory references
that follow are to the Penal Code.) The amended information alleged that, as to both
counts, defendant personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd.
(a)(1)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and
committed the offenses for the benefit of or in association with a criminal street gang
(§ 186.22, subd. (b)(1)). The amended information further alleged defendant committed
the first attempted murder charge willfully, deliberately, and with premeditation.
(§§ 664, subd. (a), 1192.7, subd. (c).)
The information was again amended to allege a single count of assault with a
firearm. (§ 245, subd. (a)(2).) The amended information further alleged defendant
personally used a firearm in commission of the offense (§ 12022.5, subds. (a) & (d)), he
committed the offense for the benefit of or in association with a criminal street gang
(§ 186.22, subd. (b)(1)), and the offense is a serious and violent felony within the
meaning of sections 1192.7, subdivision (c)(8) and 667.5, subdivision (c)(8).
Defendant pleaded no contest to the assault charge (a strike) and admitted the
special allegations in exchange for a stipulated sentence of 17 years in state prison and
dismissal of any other pending charges and allegations. The factual basis to substantiate
the plea is as follows:
On or about August 20, 2013, defendant, a member of the Sureno criminal street
gang, fired a firearm in the direction of Michael Madrid, an admitted member of the rival
Norteno criminal street gang, and did so for the benefit of or in association with the
Sureno criminal street gang.
Prior to sentencing, defendant moved to withdraw his plea. Following a closed
discussion with defendant and his counsel, the court denied the motion.
The trial court denied probation, sentenced defendant to 17 years in state prison as
stipulated, and dismissed all remaining charges and allegations. The court imposed a
2
$280 restitution fine (§ 1202.4, subd. (b)(1)) and a $280 parole revocation fine, stayed
pending successful completion of parole (§ 1202.45), and awarded defendant 397 days of
presentence custody credit (346 actual days, plus 51 conduct credits).
Defendant was granted relief from untimely filing of his notice of appeal. The
trial court did not rule on his request for a certificate of probable cause. Defendant’s
subsequent requests that the trial court modify his presentence custody credits were
denied.
II
Counsel filed an opening brief that sets forth the facts of the case and requests that
we 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. More
than 30 days have elapsed and we have received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant. We note that the trial
court’s minute order and the abstract of judgment both reflect imposition of a $40 court
operations assessment (§ 1465.8) and a $30 criminal conviction assessment (Gov. Code,
§ 70373). However, while neither assessment was included in the court’s oral
pronouncement of judgment, both are statutorily mandated. (People v. Alford (2007)
42 Cal. 4th 749, 754 [court operations assessment is mandatory for all convictions];
People v. Robinson (2012) 209 Cal. App. 4th 401, 405 [court operations and criminal
conviction assessments “are a required part of defendant’s sentence and may be corrected
on appeal”].) Therefore, we need not address them further.
DISPOSITION
The judgment is affirmed.
3
HULL , Acting P. J.
We concur:
MURRAY , J.
RENNER , J.
4