People v. Viveros CA5

Filed 9/6/16 P. v. Viveros 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F071631
Plaintiff and Respondent,
(Super. Ct. No. F13907200)
v.
RAYMOND GUILLEN VIVEROS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. John J.
Gallagher and Glenda Allen-Hill, Judges.†
Rex Adam Williams, 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 Gomes, Acting P.J., Detjen, J. and Franson, J.
† Judge Gallagher presided in the preliminary hearing; Judge Allen-Hill presided in
the change of plea and sentencing hearings.
INTRODUCTION
Appellant Raymond Guillen Viveros pled no contest to one count of corporal
injury on a cohabitant, a violation of Penal Code1 section 273.5, subdivision (a), in
exchange for dismissal of another charge and an agreed upon maximum sentence.
Viveros was sentenced in accordance with the agreement. Viveros filed a timely notice
of appeal and a certificate of probable cause was granted. Appellate counsel filed a brief
pursuant to People v. Wende (1979) 25 Cal. 3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Francine Gurrola testified at the May 14, 2014, preliminary hearing that she and
Viveros lived together off-and-on for 24 years. They were together on July 3, 2013,
when an argument began. Viveros struck Gurrola in the face with his closed fist.
Gurrola reached for her cell phone intending to call 911, but Viveros grabbed the phone
and walked away. Gurrola followed, asking for her cell phone back. When she reached
for the cell phone, Viveros kicked her. Gurrola started crying, telling Viveros if he would
return her phone she would leave. Viveros told Gurrola if she would not call the police,
he would give back her cell phone and pay her $100. Gurrola contacted the police on
July 8, 2013.
The information filed May 22, 2014, charged Viveros in count 1 with corporal
injury on a cohabitant, in violation of section 273.5, subdivision (a). Count 2 charged
Viveros with dissuading a witness, a violation of section 136.1, subdivision (b)(1).
On January 15, 2015, Viveros executed a felony advisement, waiver of rights, and
plea form. In the plea agreement, Viveros agreed to plead to the count 1 offense, in
exchange for dismissal of the other count and a sentence that included no more than 90
days in custody with no time served in state prison. Viveros initialed the paragraphs of
the form that stated he was aware he had the right to a trial, to present evidence, and to
1 References to code sections are to the Penal Code.
2.
confront witnesses and was giving up these rights. He also initialed the paragraph that
stated he had been provided “enough time” to discuss the case and all possible defenses
with his attorney.
At the change of plea hearing on January 15, 2015, the trial court verified that
Viveros had read the plea form, understood the form, had discussed his rights and the
consequences of his plea with his attorney, was waiving his constitutional rights, and
wished to enter a plea of no contest to count 1. The trial court then proceeded to accept
the plea of no contest to count 1 and count 2 was dismissed.
A probation report was prepared prior to sentencing. The probation report noted
that Viveros had graduated from Sanger High School in 1965 and thereafter obtained a
college degree. He had no prior criminal record. The probation office recommended the
mitigated term of two years in prison, suspended, and that Viveros be placed on probation
for three years pursuant to section 1203.
At the sentencing hearing on March 3, 2015, the trial court imposed sentence in
accordance with the plea agreement. Imposition of sentence was suspended and Viveros
was placed on three years’ probation, subject to serving 90 days in jail. Numerous terms
of probation and various fines and fees were imposed.
Viveros timely filed a notice of appeal and requested a certificate of probable
cause, which was granted.
DISCUSSION
Appellate counsel was appointed July 9, 2015. On October 15, 2015, appellate
counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d at page 436. That
same day, this court issued its letter to Viveros inviting him to submit a supplemental
brief. On December 22, 2015, Viveros submitted a letter brief.
In his letter brief, Viveros asserts that he had inadequate time to discuss the plea
and the case with his defense counsel; was not allowed to answer the accusations against
him; and his “side has never been heard.”
3.
The record discloses that Viveros affirmatively represented in the plea form that
he had been provided “enough time to discuss my case and all possible defenses with my
attorney.” Defense counsel signed the verification on the plea form, attesting that
defense counsel had explained the plea form to Viveros; and discussed the facts of the
case, the consequences of the plea, the elements of the offense, and possible defenses
with Viveros. At the change of plea hearing, Viveros again confirmed that he had read
and understood the plea form, understood he was giving up his constitutional right to a
trial and to present a defense, and wanted to enter a plea of no contest.
The offense to which Viveros pled carried a maximum possible sentence of four
years in prison. Defense counsel negotiated a plea agreement that provided for no prison
time, three years’ probation, and 90 days in jail. In his letter brief, Viveros complains
about the terms of probation and the “52 week ‘counseling’ marathon” he has to
participate in as a condition of probation.
The record establishes that Viveros understood the plea agreement and knowingly
and willingly entered into the plea agreement. Viveros is now expressing postplea
apprehension or “buyer’s remorse”; however, postplea apprehension is not a valid basis
for setting aside a plea agreement. (People v. Huricks (1995) 32 Cal. App. 4th 1201,
1208.) Both sides must abide by the plea agreement. (People v. Segura (2008) 44
Cal. 4th 921, 931.)
After an independent review of the record, we find no reasonably arguable factual
or legal issues exist.
DISPOSITION
The judgment is affirmed.
4.