People v. Alvarez CA5

Filed 2/19/15 P. v. Alvarez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F068415 Plaintiff and Respondent, (Super. Ct. No. CRM026178) v.

ANGEL DE JESUS ALVAREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.

* Before Levy, Acting P.J., Peña, J. and Smith, J.

-ooOoo- Defendant Angel De Jesus Alvarez pled no contest to stalking in violation of a restraining order (Pen. Code, § 646.9, subd. (b))1 and misdemeanor battery (§ 242). He admitted serving a prior prison term (§ 667.5, subd. (b)). He moved to withdraw his plea, but the trial court denied the motion and sentenced him to a total of four years in prison. On appeal, he contends (1) the trial court erred in denying his motion to withdraw the plea to the stalking count and (2) the trial court miscalculated his presentence credits. We modify the presentence credits and affirm the judgment as modified. DISCUSSION I. Motion to Withdraw Plea. Defendant contends the trial court abused its discretion by denying his motion to withdraw the plea based on newly discovered evidence, specifically letters from the victim, stating she put him in jail because she was jealous. At the hearing on the motion to withdraw the plea, defendant presented two letters allegedly written by the victim and received by defendant in jail. He said he recognized her handwriting because she had written him letters when he was in prison in the past. In the letters, she asked him to write back to her, but he did not do so because of a restraining order prohibiting it. In the letters, she mentioned their son by name. She said she did not know why she thought it would help her get defendant back; it probably just made things worse between them. Defendant took it to mean that she lied in court and made a mistake putting him in jail. She said she had done things in the past that had hurt him and she knew they were stupid mistakes, but he would not be sorry if he gave her another chance. She said she knew she should not have put him in jail, but she was jealous. If she could not have him, she did not want anyone else to have him. Defendant