THE PEOPLE v. FELIX HENRY MUNOZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTSSTATEMENT OF THE CASE

On December 3, 2009, appellant, Felix Henry Munoz, was charged in a first amended information with attempted murder (Pen.Code, §§ 664 & 187, subd. (a), count one) ¹ and active participation in a criminal street gang (§ 186.22, subd. (a), count two).   The amended information alleged enhancements for the personal use of a gun (§ 12022.53, subd. (d)) and committing his offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

On December 8, 2009, just prior to jury voir dire, appellant entered into a plea agreement in which he would admit count one, the gun use enhancement as amended by the prosecutor as a section 12022.5, subdivision (a)(1) enhancement, and the criminal street gang enhancement.   Under the terms of the agreement, appellant would receive a stipulated prison sentence of nine years for attempted murder, ten years for the criminal street gang enhancement, and four years for the gun use enhancement.   The remaining count would be dismissed.   Appellant's total prison term would be 23 years.

Appellant executed a felony advisement and waiver of rights plea form acknowledging the terms of the plea agreement and the consequences of his plea as well as waiving his rights pursuant to Boykin/Tahl.²  The court explained and appellant waived his constitutional rights pursuant to Boykin /Tahl.   The court advised appellant of the consequences of his plea.³  The parties stipulated to a factual basis of the plea.   Appellant pled no contest to count one and admitted the gun use and criminal street gang enhancements.

On March 15, 2010, the court sentenced appellant to state prison for 23 years according to the terms of the plea agreement.   The court imposed a restitution fine and awarded appellant applicable custody credits.⁴  Appellant filed a timely notice of appeal, but failed to obtain a certificate of probable cause.

On December 13, 2008, at 1:56 p.m., Fresno police officers responded to a call concerning a shooting at a bus stop.   When the officers arrived, a 16-year-old boy told them he had been shot in the back.   The bullet pierced the victim's heart and lodged in his torso.   The victim was transported to the hospital where he underwent open heart surgery.

Appellant and an accomplice were initially detained, but released due to a lack of evidence.   Further investigation revealed appellant was responsible for the shooting.   While walking past the bus stop, appellant asked the victim about the victim's gang affiliations.   When appellant did not like the response, he shot the victim.   After his arrest, appellant admitted the shooting, but claimed he was acting in self-defense.   Appellant was affiliated with a rival gang to the victim's gang.

APPELLATE COURT REVIEW

Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently.  (People v. Wende (1979) 25 Cal.3d 436.)   The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court.   By letter on August 31, 2010, we invited appellant to submit additional briefing.   To date, he has not done so.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise designated, all statutory references are to the Penal Code..  FN1. Unless otherwise designated, all statutory references are to the Penal Code.

FN2. Boykin v. Alabama (1969) 395 U.S. 238;  In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl )..  FN2. Boykin v. Alabama (1969) 395 U.S. 238;  In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl ).

FN3. Appellant received a two-year concurrent prison term in an unrelated action..  FN3. Appellant received a two-year concurrent prison term in an unrelated action.

FN4. Because attempted murder is a violent felony pursuant to section 667.5, subdivision (c)(12), and a serious felony pursuant to section 1192.7, subdivision (c)(9), appellant is not entitled to additional custody credits under the January 25, 2010 amendment to section 4019 even if it is determined that such credits may be applied retroactively..  FN4. Because attempted murder is a violent felony pursuant to section 667.5, subdivision (c)(12), and a serious felony pursuant to section 1192.7, subdivision (c)(9), appellant is not entitled to additional custody credits under the January 25, 2010 amendment to section 4019 even if it is determined that such credits may be applied retroactively.

THE COURT * FN*.  Before Levy, Acting P.J., Cornell, J., and Gomes, J.