People v. Viveros CA5

Filed 9/6/16 P. v. Viveros 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F071631 Plaintiff and Respondent, (Super. Ct. No. F13907200) v.

RAYMOND GUILLEN VIVEROS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. John J. Gallagher and Glenda Allen-Hill, Judges.† Rex Adam Williams, 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 Gomes, Acting P.J., Detjen, J. and Franson, J. † Judge Gallagher presided in the preliminary hearing; Judge Allen-Hill presided in the change of plea and sentencing hearings.

INTRODUCTION Appellant Raymond Guillen Viveros pled no contest to one count of corporal injury on a cohabitant, a violation of Penal Code1 section 273.5, subdivision (a), in exchange for dismissal of another charge and an agreed upon maximum sentence. Viveros was sentenced in accordance with the agreement. Viveros filed a timely notice of appeal and a certificate of probable cause was granted. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm. FACTUAL AND PROCEDURAL SUMMARY Francine Gurrola testified at the May 14, 2014, preliminary hearing that she and Viveros lived together off-and-on for 24 years. They were together on July 3, 2013, when an argument began. Viveros struck Gurrola in the face with his closed fist. Gurrola reached for her cell phone intending to call 911, but Viveros grabbed the phone and walked away. Gurrola followed, asking for her cell phone back. When she reached for the cell phone, Viveros kicked her. Gurrola started crying, telling Viveros if he would return her phone she would leave. Viveros told Gurrola if she would not call the police, he would give back her cell phone and pay her $100. Gurrola contacted the police on July 8, 2013. The information filed May 22, 2014, charged Viveros in count 1 with corporal injury on a cohabitant, in violation of section 273.5, subdivision (a). Count 2 charged Viveros with dissuading a witness, a violation of section 136.1, subdivision (b)(1). On January 15, 2015, Viveros executed a felony advisement, waiver of rights, and plea form. In the plea agreement, Viveros agreed to plead to the count 1 offense, in exchange for dismissal of the other count and a sentence that included no more than 90 days in custody with no time served in state prison. Viveros initialed the paragraphs of the form that stated he was aware he had the right to a trial, to present evidence, and to