People v. Valverde CA6

Filed 12/19/14 P. v. Valverde CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040210 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC1111713)

v.

GABRIEL CHARLES VALVERDE,

Defendant and Appellant.

In this appeal, Gabriel Charles Valverde (appellant) contends that we must reverse his conviction and remand this case to the trial court with directions to hold a new Marsden hearing.1 For reasons that we shall explain, this we decline to do. Proceedings Below In an amended information filed on December 5, 2012, the Santa Clara County District Attorney charged appellant with three felonies—attempted premeditated murder (Pen. Code, §§ 664, 187, 189), second degree robbery (§§ 211, 212.5, subd. (c)),2 and carrying a concealed dirk or dagger (former § 12020, subd. (a)(4)). As to the attempted murder count, the prosecutor alleged that appellant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), personally inflicted great bodily injury on the victim within the meaning of sections 12022.7, subdivision (a) and 1203, subdivision (e)(3), and personally used a deadly or dangerous weapon, to wit a knife,

1 People v. Marsden (1970) 2 Cal.3d 118. 2 All unspecified section references are to the Penal Code.

within the meaning of section 12022, subdivision (b)(1). As to the robbery count, the prosecutor alleged that appellant committed the offense for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(B). On June 5, 2013, after appellant’s trial had started, appellant agreed to plead no contest to attempted murder, grand theft (§ 487, subd. (c)), and misdemeanor possession of a dirk or dagger (former § 12020, subd. (a)(4)); and as to the attempted murder count, admit the great bodily injury enhancement, knife use and gang allegations in exchange for a 13-year prison term and the dismissal of the remaining charges and allegations. On August 12, 2013, before the court sentenced appellant to the agreed-upon term of 13 years in state prison, defense counsel informed the court that her client had written a letter to the court and he wanted to withdraw his plea. The court indicated that it had received a handwritten note from appellant, about a week before the sentencing hearing, in which he said that he wanted to withdraw his plea. The court asked defense counsel if she had seen the letter; defense counsel confirmed that she had not. The court explained that the letter had been marked received and had not been filed so the court had “not considered [it] other than to make [its] existence [sic] and general nature of the document[].” Defense counsel asked the court if the court would like her to respond to the letter. In response, the court asked defense counsel if it was her intention to pursue a motion to withdraw her client’s plea. Defense counsel confirmed that she would not be making such a motion. Defense counsel told the court that appellant “had about 48 hours to consider the offer that was made by the district attorney which continued to increase over time. Over the night, the Court was gracious enough to allow us to have the next day to come back. We had already begun the trial. [¶] Sometime over the evening I contacted his parents who appeared the next morning, who weren’t in court the previous day, were not in court for most of his court appearances either. His father wished that he take the offer and expressed that was his wish. I consulted with him. He expressed the desire to 2