People v. Appel CA2/6

Filed 10/29/21 P. v. Appel CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE OF THE STATE 2d Crim. No. B311282 OF CALIFORNIA, (Super. Ct. No. 2019007331) (Ventura County) Plaintiff and Respondent,

v.

ERIC SEREFINO APPEL,

Defendant and Appellant.

Eric Serefino Appel appeals the judgment entered after he pleaded guilty to assault with a semiautomatic firearm (Pen. Code,1 § 245, subd. (b); count 1) and possession of cocaine for sale (Health & Saf. Code, § 11351; count 5). Appellant also admitted that he personally used a firearm and inflicted great bodily injury in committing the assault (§§ 12022.5, 12022.7) and that he had a prior juvenile adjudication for robbery in 2010 that qualified as a

Unless otherwise noted, all statutory references are to the 1

Penal Code.

strike (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d)). The trial court dismissed the prior strike allegation as to the drug charge and the personal firearm use allegation as to the assault charge in the interest of justice pursuant to section 1385. Appellant was sentenced to an aggregate term of 16 years in state prison, consisting of the middle term of 6 years for the assault doubled for the prior strike, plus a 3-year enhancement for the great bodily injury allegation, plus 1 year (one-third the midterm) on the drug charge in count 5. Appellant contends the court abused its discretion in declining to dismiss his prior strike as to the assault charge in the interest of justice as contemplated in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He also claims he should be allowed to withdraw his plea due to ineffective assistance of counsel. We affirm. STATEMENT OF FACTS Because appellant pleaded guilty prior to a preliminary hearing, the relevant facts are derived from the probation report. On the night of March 2, 2019, appellant went to a party at Luis Hernandez’s home in El Rio. Appellant got into an argument with Hernandez, pulled out a handgun, and shot Hernandez in the torso. The bullet struck and fractured Hernandez’s spine and approximately two feet of his intestines had to be removed. The police subsequently searched appellant’s residence and found 68.1 grams of cocaine, a digital scale, baggies, ammunition, and $5,680 in cash. Several weeks after the shooting, appellant claimed he had acted in self-defense because Hernandez and his father stood in front of his car to prevent him from leaving. He also stated his belief that a 16-year prison sentence would be excessive and