People v. Montalbo CA5 ( 2014 )

Filed 4/16/14 P. v. Montalbo CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F066170
Plaintiff and Respondent,
(Super. Ct. No. 1211768)
v.
DAVID GARCIA MONTALBO, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo
Cordova, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Kane, Acting P.J., Poochigian, J. and Franson, J.
In exchange for an indicated sentence of 32 years, appellant David Garcia
Montalbo, in January 2010, pleaded no contest to two counts of attempted robbery (Pen.
Code, §§ 211, 664),1 two counts of assault with a firearm (§ 245, subd. (a)(2)) and a
single count of active participation in a criminal street gang (§ 186.22, subd. (a)), and
admitted the following enhancement allegations: He committed both attempted robberies
and both assaults 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 (§ 186.22, subd. (b)(1)); he personally used a firearm in committing both
attempted robberies (§ 12022.53, subd. (b)) and both assaults (§ 12022.5, subd. (a)); and
in committing the count 1 offense, he personally and intentionally discharged a firearm (§
12022.53, subd. (c)).
In February 2010, appellant moved to withdraw his plea, and the court denied the
motion and imposed the indicated 32-year prison term.
In April 2010, appellant filed a timely notice of appeal. In that appeal, People v.
Montalbo, case No. F060053, in August 2011, this court found that the court erred in
deciding appellant’s motion to withdraw his plea without any input from appellant,
reversed the judgment, remanded the matter for the limited purpose of allowing appellant
to file a motion to withdraw his plea pursuant to section 1018, and directed that if
appellant failed to file such a motion, or if the motion was denied, the trial court was to
reinstate the judgment.2
On September 12, 2012, appellant filed a notice of motion to withdraw his plea.
On September 21, 2012, after a hearing, the court denied the motion. The instant appeal
followed.
1 All further statutory references are to the Penal Code.
2 Appellant has requested that we take judicial notice of our opinion in appellant’s
previous appeal and the trial in that case. There was no trial, and we treat appellant’s
request as extending to the entire record on appeal. We grant that request.
2
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 has not responded to this court’s invitation to submit additional briefing. We
affirm.
BACKGROUND
At the September 21, 2012 hearing, appellant testified to the following. His case
was set for trial on January 5, 2010. On that day, the court made its indicated sentence
“offer” sometime prior to 11:30 a.m., and court reconvened at approximately 1:45 p.m.
At the time appellant entered his plea, he was “under extreme duress” because he “was
given but two hours to decide [whether to plead no contest in exchange for the 32-year
indicated sentence].” He did not have “enough time to really consider all the pros and
cons of plea bargaining” and “to make an informed decision.”
Appellant admitted that prior to entering his plea, he confirmed, in response to
questioning by the court, that he agreed to waive “every constitutional right available to
[him]” and that he understood “the consequences of pleading guilty to these charges.”
The transcript of the January 5, 2010 plea proceeding indicates that appellant also
confirmed, in response to questioning from the court, that he had “had enough time to
talk to [his] lawyer and tell him all the facts and circumstances [appellant knew] about
the case”; that appellant understood “the nature of the charges,” and that he was
“pleading no contest freely and voluntarily.”
In denying appellant’s plea withdrawal motion, the court found that appellant had
failed to show “by clear and convincing evidence that this plea was taken under extreme
duress or some type of mistake.”
DISCUSSION
Following independent review of the record, we have concluded that no
reasonably arguable legal or factual issues exist.
3
DISPOSITION
We grant appellant’s request for judicial notice of the record on appeal in People
v. Montalbo, case No. F060053, and our opinion in that case.
The judgment is affirmed.
4