THE PEOPLE v. RAYSHAWN LEWIS

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. RAYSHAWN LEWIS, Defendant and Appellant.

B225549

Decided: February 24, 2011

Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Rayshawn Lewis appeals from the judgment entered following his no contest plea to one count of attempted murder.  (Pen.Code, §§ 664, 187, subd. (a).)  We affirm.

On December 31, 2008, at about 11:20 a.m., Detective Jack Aranda of the Inglewood Police Department responded to a shooting on East Hardy Street in the City of Inglewood.1  The victim, Clifton Walker, was taken to the hospital, but he was unable to speak with officers because of his injuries.   On January 14, 2009, Detective Aranda interviewed Walker at the hospital.   Walker stated that on the day of the shooting, he was riding his bicycle past appellant, who was riding a bicycle in the opposite direction.   After riding past appellant, Walker looked back and saw appellant remove a black revolver from a brown paper bag.   Appellant shot at Walker approximately three times.   Walker was paralyzed and had one of his legs amputated as a result of his injuries.   Walker knew appellant as Lewis, or by the moniker Ray-Ray, and identified him in a six-pack photo lineup.   Appellant was believed to be a member of the Avenue Piru Blood gang.

An information was filed on March 3, 2010, charging appellant with one count of attempted murder.  (Pen.Code, §§ 664, 187, subd. (a).)  The information alleged that appellant personally used a firearm (Pen.Code, § 12022.53, subds.(b), (e)(1)), personally and intentionally discharged a firearm (Pen.Code, § 12022.53, subds.(c), (e)(1)), and personally and intentionally discharged a firearm, causing great bodily injury (Pen.Code, § 12022.53, subds.(d), (e)(1)).   It was further alleged that appellant was a minor at least 16 years of age at the time of the offense (Welf. & Inst.Code, § 707, subdivision (d)(1)), and that the offense was committed for the benefit of a criminal street gang and was a violent felony (Pen.Code, § 186.22, subd. (b)(1)(C)).  Appellant entered a not guilty plea and denied all the allegations.

On May 3, 2010, a hearing was held on appellant's motion to suppress evidence under Penal Code section 1538.5, regarding a statement made by appellant.   The court found that the motion was actually an Evidence Code section 402 motion to be heard by the trial judge.

On May 10, 2010, appellant entered into a plea agreement pursuant to which he agreed to plead no contest to the attempted murder charge and to admit the allegations, in exchange for a 23-year sentence.   The information was amended by interlineation such that the enhancements alleged were the following:  appellant personally used a firearm (Pen.Code, § 12022.53, subd. (b));  he inflicted great bodily injury (Pen.Code, § 12022.7, subd. (a));  and the offense was committed for the benefit of a criminal street gang and was a serious felony (Pen.Code, § 186.22, subd. (b)(1)(B)).  The prosecutor explained appellant's rights to him and appellant acknowledged that he understood his rights and waived them.   The trial court determined that the plea was knowing, intelligent, free and voluntary, and that there was a factual basis for the plea.   The court accepted the plea, found appellant guilty, and found that he admitted the special allegations.   The court began to sentence appellant, but appellant indicated his desire to be present at the restitution hearing, so the court stated that it would conclude sentencing at the restitution hearing.

At the June 9, 2010 restitution hearing, appellant indicated that he wanted to set aside his plea because he was frightened into accepting the plea bargain and did not understand the plea agreement that he signed.   The court decided to hold a Marsden hearing.  (People v. Marsden (1970) 2 Cal.3d 118.)

At the Marsden hearing, appellant asserted that he wanted to go to trial because he was innocent, but his attorney scared him into accepting the plea agreement by telling him he would lose at trial, get life in prison, and never see his family again.   He further asserted that his attorney failed to share discovery with him of evidence such as a police report and witness statements, despite his requests to see them.   Defense counsel stated that he had given appellant witness statements and cell phone records and had reviewed all the evidence with appellant.   He further asserted that it was appellant's parents who convinced appellant to accept the plea, despite the fact that they were his alibi witnesses.   The court denied the Marsden motion.   The court also denied appellant's request to set aside his plea, stating that appellant waived his rights and signed the plea agreement after a lengthy discussion in court and with his family.

The court sentenced appellant pursuant to the plea agreement to a total term of 23 years in state prison, calculated as follows:  the low term of five years (Pen.Code, §§ 664, 187, subd. (a)), plus 10 years for the firearm allegation (Pen.Code, § 12022.53, subd. (b)), three years for the great bodily injury allegation (Pen.Code, § 12022.7, subd. (a)), and five years for the gang allegation (Pen.Code, § 186.22, subd. (b)(1)(B)).  The court imposed the requisite fines, fees, and conditions, and gave appellant credit for 504 days of actual custody and 76 days of good time/work time credit for a total of 580 days.   The court granted the prosecutor's motion to dismiss any remaining counts, charges, and allegations pursuant to the plea agreement.   Appellant filed a timely notice of appeal, acting in propria persona.

After review of the record, appellant's court-appointed counsel filed an opening brief requesting this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On November 16, 2010, we advised appellant that he had 30 days within which to submit any contentions or issues which he wished us to consider.   No response has been received to date.   On December 3, 2010, we granted appellant's motion to amend the notice of appeal to specify that the appeal will address noncertificate issues.  (Pen.Code, § 1237.5;  Cal. Rules of Court, rule 8.304(b).)

We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case.   (Smith v. Robbins (2000) 528 U.S. 259, 278;  People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. The facts are taken from the transcript of the preliminary hearing..  FN1. The facts are taken from the transcript of the preliminary hearing.

WILLHITE, J. MANELLA, J.