Opinion
F061322
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE FERNANDO CARDENAS, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Kern Super. Ct. No. BF130489B)
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Appellant, Jose Fernando Cardenas, appeals from a judgment entered after he pled no contest to kidnapping (Pen. Code. § 207, subd. (a)) and admitted a gang enhancement (§ 186.22, subd. (a)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On December 29, 2009, at approximately 10:00 p.m., Zachary Epps called Casey C. to ask for a ride. Casey and his cousin then picked Epps up at one location and drove to a second location where they picked up Jenna Campbell, who sat in the back seat with Epps. At Epps' request, Casey then picked up Cardenas at another location and drove to a residence in Lamont. The group then returned to Bakersfield where Casey dropped his cousin off and Cardenas got in the front passenger's seat. As Casey drove to another location, Cardenas and Epps pulled out knives, put them to Casey's throat, and made him pull into an apartment complex parking lot. Cardenas and Epps kept yelling at Casey to keep his hands on the steering wheel and threatening to cut his throat if he moved them. They also told Casey that they had a firearm and would kill him and his family if he did not follow their instructions. Cardenas then directed Casey to an ATM machine where he used Casey's ATM card to withdraw $100 from Casey's account. After putting gas in the car, Casey drove to the Valley Plaza Mall where a woman picked up Cardenas, Epps, and Campbell. Before they left, however, Cardenas and Epps took the contents of Casey's wallet and his tennis shoes.
On December 30, 2009, Bakersfield police officers arrested Cardenas, Epps, and Campbell. Casey positively identified the trio as being involved in the robbery.
On April 29, 2010, the district attorney filed an information charging Cardenas with conspiracy to commit kidnapping for the purpose of robbery (count 1/Pen. Code, §§ 182, subd. (a)(1) & 209, subd. (b)(1)), kidnapping with the intent to commit robbery (count 2/§ 209, subd. (b)(1)), kidnapping during the commission of a carjacking (count 3/§ 209.5, subd. (a)), assault with a deadly weapon (count 4/§ 245, subd. (a)(1)), criminal threats (count 5/§ 422), dissuading a witness (count 6/§ 136.1, subd. (c)(1)), unlawful possession of a knife with the intent to dissuade a witness (count 7/§ 136.5), and being a member of a criminal street gang (count 8/§ 186.22, subd. (a)). The information also alleged a street gang enhancement pursuant to section 186.22, subdivision (b)(1), in counts 1 through 5, a street gang enhancement pursuant to section 186.22, subdivision (b)(4), in counts 6 and 7, a personal use of a knife enhancement (§ 12022, subd. (b)(2)), in counts 1, 2, 3, 5, 6, 7, and 8, and four prior prison term enhancements (§ 667.5, subd. (b)).
Epps and Campbell were charged as codefendants with many of the same counts and/or enhancements.
On July 21, 2010, the district attorney amended the information to include an additional count charging Cardenas with kidnapping (§ 207, subd. (a)) and a street gang enhancement (§ 186.22, subd. (b)(1)). Cardenas then pled no contest to kidnapping and admitted the enhancement in exchange for the dismissal of the remaining counts and enhancements and a stipulated term of 18 years.
During the change of plea proceedings on July 21, 2010, the parties and the court erroneously referred to the offense Cardenas pled to as kidnapping in violation of section 207, subdivision (b). However, on July 23, 2010, the court issued a minute order clarifying that Cardenas entered a plea to kidnapping in violation of section 207, subdivision (a).
On September 1, 2010, the court sentenced Cardenas to an aggregate 18-year term consisting of the aggravated term of 8 years on his kidnapping conviction and a 10-year gang enhancement.
Cardenas's appellate counsel has filed a brief, which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Cardenas has not responded to this court's invitation to submit additional briefing.
Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist. However, Cardenas's abstract of judgment erroneously indicates in section 12 that his presentence custody credit was calculated pursuant to section 4019 instead of section 2933.1.
DISPOSITION
The trial court is directed to issue an amended abstract of judgment that corrects the above noted error and to forward a certified copy to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.