People v. Peralta CA2/6

Filed 5/20/14 P. v. Peralta CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B248394 (Super. Ct. No. 2010034214) Plaintiff and Respondent, (Ventura County)

v.

JOSEPH PERALTA,

Defendant and Appellant.

Appellant Joseph Peralta was charged with second degree commercial burglary (Pen. Code, § 459),1 assault with a firearm (§ 245, subd. (a)(2)), unlawful transfer of a firearm (former § 12072, subd. (d)), dissuading a witness from testifying (§ 136.1, subd. (a)(1)), and four counts of street terrorism (§ 186.22, subd. (a)). Appellant also was charged with personally using a firearm in committing the assault (§§ 1203.06, subd. (a)(1), 12022.5), committing the assault for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and having suffered a prior strike conviction (§§ 667, subds. (a)(1), (c)(1), (e)(1), 1170.12, subds. (a)(1), (c)(1)). In exchange for a negotiated sentence, appellant waived his trial rights and pled guilty to the burglary, assault, and

1 All statutory references are to the Penal Code.

unlawful transfer charges, and admitted the gun use and prior conviction allegations.2 On motion of the district attorney and pursuant to the plea bargain, the trial court dismissed the remaining charges. Pursuant to the plea agreement, appellant was sentenced to an aggregate term of 17 years 8 months in state prison. Appellant filed a timely notice of appeal and obtained a certificate of probable cause. He contends that the trial court erroneously denied his motion to withdraw his plea. We disagree and affirm. FACTS The facts underlying appellant's convictions are not relevant to the issue raised on appeal, so we need not discuss them in detail. At the preliminary hearing, the prosecution presented evidence that appellant stole approximately $150 from the Perfect Party store in Oxnard with preplanned assistance from a friend, Jessica Velasco, who worked there. Appellant entered the store, approached Velasco at the cash register, and told her to give him the money, gesturing toward his waistband as if to indicate that he had a gun. Velasco later confessed her involvement in the burglary when confronted by the police with a series of incriminating text messages. Around two weeks later, appellant, a member of the El Rio Trouble gang, fired two rounds from a shotgun at a vehicle driven by Julio Hurtado, a member of the rival Can't Stop Rascals (KS) gang. A nearby resident heard the shots. Appellant sent text messages at the time of the shooting to a friend who lived nearby, stating that he "hit the car" and referencing Hurtado's gang moniker, Striker. Appellant's associate Charlie Cervantes told the police that he was driving appellant that evening and observed appellant shoot at a vehicle after recognizing its occupants as KS gang members. The following month, appellant—then in custody on other charges— arranged for the sale of a .22-caliber revolver to a confidential informant. After being