People v. Terry CA6

Filed 3/16/22 P. v. Terry CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049079 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1909540)

v.

DIALO ANDRAES TERRY,

Defendant and Appellant.

Appellant Dialo Andraes Terry appeals from a judgment entered after conviction by plea. Appointed counsel for Terry has filed a brief asking this court to review the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Terry was advised of the right to file a supplemental brief but has not responded. Finding no arguable error that would result in a disposition more favorable to Terry, we affirm the judgment. I. FACTS AND PROCEDURAL BACKGROUND On April 4, 2019, a group of four men and two women chased Ryan Rousse into a Dollar Tree store in San Jose.1 The men hit and kicked Rousse, who received multiple stab wounds. Rousse died of his wounds later that day. One of the individuals chasing

1 These facts are taken from the probation report prepared for Terry’s sentencing.

Rousse was heard yelling “ ‘Norte, you piece of sh*t drop out.’ ” and “ ‘He’s a Northerner.’ ” By the time the police arrived at the store, the group chasing Rousse had fled. A police investigation resulted in the identification of Terry as one of the individuals who had participated in the stabbing of Rousse at the Dollar Tree store. Terry was charged by indictment with participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)2; count 1), murder (§ 187, subd. (a); count 2) with an allegation that he had committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)) and a special circumstance allegation that, when he killed the victim, Terry was an active participant in the Norteño criminal street gang (§ 190.2, subd. (a)(22)), and assault with a deadly weapon (§ 245, subd. (a)(1); count 3) with an allegation he had committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)). Five other individuals were also charged in the indictment.3 On July 18, 2019, Terry filed a motion to set aside the indictment (§ 995) on the ground that insufficient evidence was presented to the grand jury to support count 2, its special allegation, and count 3. Terry also contended the indictment must be dismissed because the prosecution had failed to present exculpatory evidence. On September 13, 2019, the trial court granted the section 995 motion as to count 3 and dismissed that count against Terry. The court denied Terry’s motion on the remaining grounds, including insufficiency of the evidence as to count 2 and its allegations. On December 19, 2019, the parties appeared in court for a change-of-plea hearing. The trial court engaged in an oral plea colloquy with Terry before taking his plea. The