People v. Vargas CA3

Filed 3/11/16 P. v. Vargas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE, C079782

Plaintiff and Respondent, (Super. Ct. No. 62132054)

v.

LEONARDO TORRES VARGAS,

Defendant and Appellant.

Appointed counsel for defendant Leonardo Torres Vargas 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 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

1

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.) Defendant was charged with felony carjacking (Pen. Code, § 215, subd. (a))1 and misdemeanor resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1)). The complaint alleged defendant personally used a firearm during commission of the carjacking. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) On April 2, 2015, defendant entered a negotiated plea of no contest to carjacking and admitted the firearm enhancement in exchange for dismissal of the remaining charge and a sentencing lid of 15 years, giving the trial court the option of imposing either the lower term (three years) or the middle term (five years) on the carjacking count. The factual basis for the plea was as follows: On July 27, 2014, defendant pointed a loaded firearm at the victim and demanded the victim’s car keys. Defendant then took the victim’s keys and fled in the victim’s vehicle. On May 20, 2015, at defendant’s request, the trial court relieved retained counsel as attorney of record and appointed a public defender to determine whether there were grounds for a motion to withdraw the plea and to represent defendant for the duration of the case. On July 2, 2015, defendant filed a motion to withdraw his plea on the ground of ineffective assistance of counsel. In particular, the motion argued that defendant’s former trial counsel misled him to believe the section 12022.53, subdivision (b) firearm enhancement applied to defendant’s crime when, according to defendant, section 12022.53 enhancements refer only to gang-related crimes and therefore did not apply to his crime, which was not gang related. In support of the motion, defendant wrote a letter