People v. Ortiz CA5

Filed 1/15/16 P. v. Ortiz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070505 Plaintiff and Respondent, (Super. Ct. No. F14900304) v.

JUAN DANIEL ORTIZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

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

PROCEDURAL AND FACTUAL SUMMARY Defendant Juan Daniel Ortiz was charged in a second amended felony complaint filed on September 18, 2014, with assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b), count 1),1 actively participating in a criminal street gang to promote or assist its members in felony criminal conduct (§ 186.22, subd. (a), count 2), carrying a loaded firearm in public (§ 25850, subd. (a), count 3), and being the occupant of a motor vehicle carrying a concealed firearm (§ 25400, subd. (a)(3), count 4). Count 1 alleged a criminal street gang enhancement (§ 186.22, subd. (b)(1)). On the same date, defendant entered into a plea agreement. Defendant initialed and executed a felony advisement, waiver of rights, and plea form acknowledging the consequences of his plea. Defendant further acknowledged and waived his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl). Under the terms of the plea agreement, defendant would admit count 1 and the gang enhancement alleged on that count. Defendant acknowledged the maximum he would face was 14 years in prison. In exchange for defendant’s plea, the remaining allegations would be dismissed. At the change of plea hearing, the court reviewed the terms of the plea, including that the prison sentence would be a stipulated term of 14 years. The parties stipulated there was a factual basis for the plea. Defendant acknowledged he read, initialed, executed, and understood he was giving up constitutional rights. The court reviewed defendant’s Boykin/Tahl rights and established on the record that defendant understood them and was waiving them. Defendant pled no contest to count 1 and admitted the gang enhancement allegation. On October 17, 2014, the trial court sentenced defendant pursuant to the terms of the plea agreement to the stipulated prison term of 14 years, calculated as the nine-year