People v. Matias CA6

Filed 6/24/14 P. v. Matias CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039856 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS100989)

v.

MARCO ANTONIO MATIAS,

Defendant and Appellant.

Defendant Marco Antonio Matias was charged in connection with a drive-by shooting that occurred on March 18, 2010. Matias entered into a negotiated plea agreement by which he pleaded no contest to three of the eight charged offenses--felony attempted murder (Pen. Code, §§ 664, 187, subd. (a)),1 felony assault with a semiautomatic firearm (§ 245, subd. (b)), and misdemeanor street terrorism (§ 186.22, subd. (a))--in exchange for a sentence of 18 years and four months in prison and dismissal of the remaining charges. Matias also admitted to using a firearm during the commission of the offenses of attempted murder and assault with a semiautomatic firearm. Immediately prior to sentencing, Matias retained new counsel and sought to continue the sentencing hearing and to withdraw his plea on the ground that his prior attorney failed to inform him as to the terms of the plea agreement. Following a hearing at which Matias’s prior counsel testified, the court denied Matias’s motions and 1 Further unspecified statutory references are to the Penal Code.

sentenced him to a term of 18 years and four months. Matias appealed. For the following reasons, we affirm. I. FACTUAL BACKGROUND2 On the evening of March 18, 2010, Salinas police officers responded to a report of a shooting. At the scene, the officers encountered the victims, victim 1 and victim 2. Victim 1 had gunshot wounds to the chest and both arms. While being transported to the trauma center, victim 1 told officers that he recognized the shooter but could not identify him by name. According to victim 1, a vehicle driven by the shooter and carrying a female passenger had pulled up next to his vehicle, the driver made a hand gesture associated with the Hebbron gang, and then the driver shot him. Victim 2, who was unharmed, told officers that a vehicle occupied by a man and a woman had pulled up next to the vehicle in which he and victim 1 were driving. The male driver looked at them, yelled, “What?” and “Hebbron,” and then shot at their vehicle. Victim 2 said that he recognized the shooter as an employee of a nearby grocery store, but that he did not know the man’s name. Officers identified several bullet holes in the driver side door and the front windshield of the victims’ vehicle. They found five shell casings in the roadway where the victims reported the shooting had occurred. On March 22, 2010, victim 1 and victim 2 came to the police station to inform investigators that they could identify the shooter as Matias, an employee of the “Foods Co grocery store” who lived on “St. Charles Way in Salinas.” Victim 1 and victim 2 explained that they knew Matias from Alisal High School. Both victims positively identified Matias as the shooter from a photographic lineup. Officers obtained and executed a warrant for Matias’s arrest. Search of his residence and vehicle, conducted pursuant to a warrant, yielded 11.9 grams of marijuana,