People v. Diaz CA3

Filed 12/8/15 P. v. Diaz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C078192

Plaintiff and Respondent, (Super. Ct. No. 13F05311)

v.

CHARLES MOISES DIAZ,

Defendant and Appellant.

Appointed counsel for defendant Charles Moises Diaz has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

I

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

1

Defendant was charged by amended information with two counts of attempted murder. (Pen. Code, §§ 187, 664, subd. (a); unless otherwise stated, statutory references that follow are to the Penal Code.) The amended information alleged that, as to both counts, defendant personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)(1)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and committed the offenses for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The amended information further alleged defendant committed the first attempted murder charge willfully, deliberately, and with premeditation. (§§ 664, subd. (a), 1192.7, subd. (c).) The information was again amended to allege a single count of assault with a firearm. (§ 245, subd. (a)(2).) The amended information further alleged defendant personally used a firearm in commission of the offense (§ 12022.5, subds. (a) & (d)), he committed the offense for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and the offense is a serious and violent felony within the meaning of sections 1192.7, subdivision (c)(8) and 667.5, subdivision (c)(8). Defendant pleaded no contest to the assault charge (a strike) and admitted the special allegations in exchange for a stipulated sentence of 17 years in state prison and dismissal of any other pending charges and allegations. The factual basis to substantiate the plea is as follows: On or about August 20, 2013, defendant, a member of the Sureno criminal street gang, fired a firearm in the direction of Michael Madrid, an admitted member of the rival Norteno criminal street gang, and did so for the benefit of or in association with the Sureno criminal street gang. Prior to sentencing, defendant moved to withdraw his plea. Following a closed discussion with defendant and his counsel, the court denied the motion. The trial court denied probation, sentenced defendant to 17 years in state prison as stipulated, and dismissed all remaining charges and allegations. The court imposed a