Opinion
E076863
07-21-2021
THE PEOPLE, Plaintiff and Respondent, v. MANUEL WILLIAM GARCIA, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1702362. Emma C. Smith, Judge. Affirmed.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
MCKINSTER, ACTING P.J.
On remand from this court, the trial court declined to strike defendant and appellant, Manuel William Garcia's, prior serious felony conviction enhancement. (Pen, Code, § 667, subd. (a).) After defendant filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and one potentially arguable issue: whether the court abused its discretion in declining to strike defendant's prior serious felony conviction enhancement. We affirm.
All further statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 6, 2017, defendant and his friend got into an argument. Defendant pointed a shotgun at his friend's chest, and then put it down. His friend said, “That's what I thought, b----.” Defendant cocked the gun and shot him in the leg. Defendant said, “Let's go, fool.” He gave his friend a shirt to tie around his leg. However, defendant then fled. (People v. Garcia (Feb. 7, 2020, E071582) [nonpub. opn.] (Garcia).)
On April 17, 2018, defendant pled guilty to being a felon in possession of a firearm. (§ 29800, subd. (a)(1), count 3.) A jury subsequently found defendant guilty of assault with a firearm (§ 245, subd. (a)(2), count 1) and found true attached enhancements that he personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) and personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)). Defendant admitted allegations that he had served three prior prison terms (§ 667.5, subd. (b)), had one prior serious felony conviction (§ 667, subd. (a)), and had one prior strike conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)). (Garcia, supra, E071582.)
At the sentencing hearing, the court remarked that the probation officer's “recommendation... included virtually no mitigation whatsoever and a lot of aggravating factors including a statement from the defendant during his interview suggesting that he should have just killed the victim in the case.” The court dismissed one of the prison priors and sentenced defendant to a total term of 23 years four months in state prison.
The court also sentenced defendant to a consecutive four years of imprisonment on a second case and nine years eight months in a third case.
Defendant appealed contending, in pertinent part, that the matter should be remanded for the trial court to exercise its discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.) to strike the five-year enhancement under section 667, subdivision (a), and that his prior prison term enhancements must be stricken under newly enacted Senate Bill No. 136 (2019-2020 Reg. Sess.). We agreed and remanded the matter to the trial court to exercise its discretion to determine whether to strike defendant's prior serious felony enhancement; we directed the court to strike the two remaining prior prison term enhancements. (Garcia, supra, E071582.)
On remand, defendant filed “points and authorities” regarding the issue of whether the court should strike the prior serious felony conviction enhancement; the filing consisted of two letters by character “witnesses” on behalf of defendant. At the resentencing hearing, the court indicated it had read and considered defendant's “points and authorities” and had reviewed the probation officer's report. After hearing argument from counsel, the court chose not to exercise its discretion to strike the enhancement finding “there are no mitigation circumstances to warrant that.” The court struck the remaining prior prison term enhancements, resentencing defendant to 21 years four months of imprisonment.
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
We concur: MILLER J., FIELDS J.