People v. Farias CA5

Filed 2/11/14 P. v. Farias CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, F066216

v. (Super. Ct. No. VCF251965A)

ALBERTO GUADALUPE FARIAS, OPINION

Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. Solomon Wollack, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Brian G. Smiley and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Levy, Acting P.J., Cornell, J., and Hoff, J.† † Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Appellant, Alberto Guadalupe Farias, pled no contest to attempted murder (Pen. Code, §§ 664/187, subd. (a))1 and admitted a personal use of a firearm enhancement (§ 12022.53, subd. (b)) and a gang enhancement (§ 186.22, subd. (b)(1)(C)). On October 12, 2012, the court denied Farias’s motion to withdraw plea and sentenced him to an indeterminate term of 25 years to life. On appeal, Farias contends his sentence was unauthorized. We affirm. FACTS On April 29, 2011, as E.V. drove with his brother, N.V., to an acquaintance’s house in Woodville, a Trailblazer, driven by Clint Gilbert with Farias as a passenger, approached them from behind and pulled alongside them. Farias then fired several shots at the brothers, causing E.V. to lose control of his car and crash. After the shooting, Farias told Gilbert that the victims were “outsiders.” Farias was a Northern gang member and Gilbert was a Northern gang associate. E.V. sustained a gunshot wound to his back, one to his left calf, and a broken leg. N.V. suffered a gunshot wound to his neck, one to his right thigh, a large laceration to his left knee, fractures to each of his legs, and an injury to his ulnar nerve. On August 25, 2011, the district attorney filed an information charging Farias and Gilbert with two counts of attempted murder (counts 1 & 2/§§ 664 & 187, subd. (a)) and one count of shooting at an occupied motor vehicle (count 3/§ 246). Counts 1 and 2 also alleged that the underlying attempted murders were committed “willfully, deliberately and with premeditation” within the meaning of section 664, subdivision (a). Each count also charged Farias and Gilbert with various gun enhancements and a gang enhancement (§ 186.22, subd. (b)(1)(c)).