People v. Vargas CA2/4

Filed 9/23/14 P. v. Vargas CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B252072

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA401370) v.

GIOVANNI VARGAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Teri Schwartz, Judge. Affirmed. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Giovanni Vargas of one count of attempted robbery (Pen. Code, §§ 664/211) and two counts of resisting, obstructing or delaying a police officer (Pen. Code, § 148, subd. (a)(1)).1 In a court trial, the trial court found true the allegations of a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious felony conviction ( § 667, subd. (a)(1)), and a prior prison term (§ 667.5, subd. (b)). The court sentenced appellant to a total term of 9 years in state prison. In this appeal from the judgment, appellant contends that the trial court erred in failing to conduct an evidentiary hearing regarding his allegation of ineffective assistance of counsel in his motion for new trial. We disagree and affirm the judgment.

FACTUAL BACKGROUND On August 12, 2012, around 5:30 p.m., Miguel Velasquez returned to his home after a bicycle ride. He was in front of his home, placing his bicycle and other equipment in his car, when appellant, who was shirtless, ran toward him and asked in Spanish for money.2 Velasquez noticed appellant had a tattoo on his arm and smelled of alcohol. Velasquez said he had no money and began backing away. Appellant turned his attention to Velasquez’s neighbor, who was fixing his car across the street, but the neighbor pulled out a metal bar to scare appellant away. Appellant then grabbed Velasquez’s bicycle. Velasquez said, “It’s my bike,” and began struggling with appellant. They both fell to the ground, and appellant kicked Velasquez in the knees and punched him in the head. Two other men approached and also started punching Velasquez. Velasquez’s neighbor