In re Gonzalez CA5

Filed 4/17/15 In re Gonzalez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re F070120

GUSTAVO PATINO GONZALEZ, (Tulare Super Ct. No. VCF242391)

On Habeas Corpus. OPINION

THE COURT* ORIGINAL PROCEEDING; petition for writ of habeas corpus. Gustavo Patino Gonzalez, in pro. per., for Petitioner. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Respondent. -ooOoo- Gustavo Patino Gonzalez (petitioner) seeks permission to file a belated appeal by way of a petition for writ of habeas corpus. We grant petitioner’s request based on his filing of a premature Notice of Appeal prior to a final judgment and defense counsel’s admission that petitioner asked him to file an appeal multiple times before, during, and

* Before Kane, A.P.J., Detjen, J., and Peña, J.

after sentencing. Petitioner’s additional habeas claims are denied without prejudice for consideration in the appeal. STATEMENT OF FACTS According to documents submitted with the petition for writ of habeas corpus, petitioner was charged in 2012 in the Tulare County Superior Court with kidnapping to commit robbery (Pen. Code,1 § 209, subd. (b)(1); count one); second-degree robbery (§ 211; count two); false imprisonment by violence (§ 236; count three); two counts of assault with a firearm (§ 245, subd. (a)(2); counts four and five); and conspiracy to commit robbery (§ 182, subd. (a)(2); count six). The prosecutor alleged petitioner had a prior “strike” conviction (§ 1170.12, subds. (a)-(d)) and a prior serious felony (§ 667, subd. (a)(1)). In April 2012, a jury found petitioner guilty of robbery in count two and conspiracy in count six, but was unable to reach a verdict on the remaining counts. It appears petitioner later pled guilty in June 2012 to one of the counts for assault with a firearm in exchange for a 15-year maximum sentence for all three offenses and the dismissal of the remaining counts. At some point thereafter, but prior to sentencing, petitioner’s trial counsel filed a motion to withdraw the plea based on information that petitioner’s codefendant had told others that petitioner was not involved in the crimes. On September 20, 2012, petitioner’s trial counsel filed a notice of appeal along with a request for certificate of probable cause explaining that had petitioner been aware of the information regarding his codefendant’s statements, he would not have entered into the plea agreement. The trial court denied the request for certificate of probable cause, noting that it was “not needed to appeal conviction” and that a “motion to W/D plea is pending.”