Filed 11/4/13 P. v. Murrietta CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,

v.

MODESTO MURRIETTA,
Defendant and Appellant. 2d Crim. No. B244559 (Super. Ct. No s

. LA068321 , LA068609 ) (Los Angeles County)

Modesto Murrietta appeals from the judgment after conviction by plea of no contest to second degree robbery in Los Angeles Superior Court Case No. LA068609

. (Pen. Code, § 211

. ) Murrietta admitted that he suffered a prior prison sentence. (§ 667.5, subd. (b).) The trial court dismissed charges against Murrietta in an unrelated consolidated case (No. LA068321) and sentenced Murriett a to three years in state prison consisting of a two

- year low term for the robbery and a one

- year term for the
enhancement

. We appointed counsel to represent Murrietta on this appeal. After counsel ' s examination of the record, she filed an opening brief in which no issues were raised. We advised appellant that he had 30 days in which to personally submit any contentions that he wished to raise on appeal. He filed a timely supplemental letter brief challenging the sentence and the validity of the plea o n the ground that his attorney rendered ineffective
assistance of counsel.2 A loss prevention officer testified at the preliminary hearing that Murrietta
entered a Rite

- Aid store, put a cell phone charger in his pocket, and left without paying.
When t he loss prevention officer confronted Murrietta o utside
, Murrietta pointed a pocket
knife at him and told him not to get too close.

In an unrelated case, Murrietta was charged with committing four felonies against another victim: first degree burglary (§ 45 9); assault wi th a firearm (§ 245, subd. (a)(2 )); assault with a deadly weapon (§ 245, subd. (a)(1)); and making criminal threats (§ 422.). (Los Angeles Superior Court Case No. LA 0 68321.) The trial court ordered the
two cases consolidated.

Before the c ases were set for trial, Murrietta asked the court for permission to represent himself because he had a " gut " feeling and felt the case was " snowballing. "
The trial court granted his request. At Murrietta ' s next appearance, h e asked the court to reappoin t the public defender. The court reappoint ed the public defender.

Murrietta pled no contest to the robbery in case number LA068609. Pursuant to a plea agreement, the trial court dismissed an allegation that Murrietta committed the robbery with persona l use of a deadly weapon ( § 12022, subd. (b)(1)) and dismissed the four felony counts in case number LA 0 68321.

Before sentencing, Murrietta moved to withdraw his plea on the ground that
it was coerced. He testified that he felt pressured because the pro secutor told him the
deal would be " off the table " if he did not take it and because Murrietta ' s own attorney told him to take the deal. The trial court denied the motion. After entering judgm ent, the
trial court denied Mur rietta ' s request for a certific ate of probable cause.

Murrietta has not e stablish ed either that his counsel ' s representation fell below an objective standard of reasonableness or a reasonable probability that he would
have obtained a more favorable result but for counsel ' s deficient performance. ( Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) We presume counsel ' s conduct fell within the wide range of reasonable professional assistance, and we defer to reasonable tactical decisions. ( People v. Frye (1998) 18 Cal.4th 894, 9 79.) Murrietta contends that his attorney should have contacted favorable witnesses and should have3

presented a surveillance video in court to show he did not use a knife. Murrietta waived the right to present evidence

. Moreover, he cannot establish pre judice because the knife allegation was dismissed and his sentence was not based on use of a weapon.

The record does not support Murrietta ' s contention that his attorney

" pressured " him into the plea agreement while he was under " a diminished capacity of prescription medication. " Murrietta actively and coherently joined in the negotiations on
the record. He told the court that he was entering into the agreement freely and voluntarily. Murrietta has not established deficient performance and it is not re asonably probably that he would have obtained a more favorable outcome if he had not accepted the plea agreement. He had suffered three prior felonies and was facing up to 15 years in state prison but received only a three

- year term under the agreement.

We have reviewed the entire record and are satisfied that appellant ' s attorney has fully complied with her responsibilities and that no arguable issues exist. ( People v. Wende (1979) 25 Cal.3d 436, 443; People v. Kelly ( 2006) 40 Cal.4th 106, 126.)
Th e judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.4 Martin L. Herscovitz, Judge
Superior Court County of Los Angeles

______________________________

Lise M. Breakey, under appointment by the C ourt of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.