People v. Gastelum CA3

Filed 5/22/15 P. v. Gastelum CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE,

Plaintiff and Respondent, C075101

v. (Super. Ct. No. CRF112782)

JOSE MANUEL GASTELUM,

Defendant and Appellant.

Defendant Jose Manuel Gastelum appeals following the trial court’s denial of his motion to vacate the judgment. He contends the trial court should have construed his motion as a petition for writ of habeas corpus premised on ineffective assistance of counsel. We conclude the trial court’s order, whether construed as a denial of a nonstatutory motion to vacate the judgment or a denial of a petition for a writ of habeas corpus, is nonappealable. Therefore, we dismiss the instant appeal.

1

FACTUAL AND PROCEDURAL BACKGROUND On July 27, 2011, defendant pled no contest to assault with a deadly weapon, a vehicle. (Pen. Code, § 245, subd. (a)(1).)1 He acknowledged he understood and discussed the charges and possible defenses thereto with his attorney, and there was a factual basis for his plea. Defense counsel also averred he had explained the consequences of the plea, the elements of the offense, and possible defenses to defendant. The factual basis presented was that “defendant drove his car intentionally into the car of the victim; in doing so, he caused damage to the victim’s car. The defendant exited his car and began hitting the victim. The defendant’s ex-wife tried to intervene and she was also injured and hit.” Defense counsel acknowledged the factual basis, but noted the property damage was minor. Defendant did not dispute the factual basis and orally entered his plea after hearing the factual basis. In accordance with his plea, on September 6, 2011, defendant was sentenced to serve four years in state prison, execution of the sentence was suspended, and defendant was granted three years of probation. On September 20, 2013, defendant moved in pro per to vacate his sentence and conviction on the basis he was innocent of the charged offense. In support of his motion, defendant argued that though his vehicle did “graze” the victim’s, defendant did not “intentionally or willfully use [his] vehicle to assault” the victim. Defendant construed his statement to mean he was “factually innocent” of assault with a deadly weapon. Defendant further argued his attorney “never explained to him the elements of the offense or considered the facts on how the incident occurred.” Had his attorney done so, he would not have advised defendant to plead guilty. Defendant argued his guilty plea “was not freely and voluntarily made” because he would have elected to go to trial instead had