Opinion
G057747
02-21-2020
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL WILLIAMS ALDAVE, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16NF2160) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Julian W. Bailey, Judge. Affirmed. Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.
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Defendant Gabriel Williams Aldave appeals from a postjudgment order resentencing him following our directions on remand from his appeal in People v. Aldave (Sept. 6, 2018, G055045) [nonpub. opn.] (Aldave I). We recite the procedural history of this case by quoting from Aldave I. In April 2017, defendant was convicted by jury "of possessing methamphetamine for purposes of sale (Health & Saf. Code, § 11378), false personation (Pen. Code, § 529, subd. (a)(3)—both felonies, possession of heroin (§ 11350, subd. (a)), and narcotics paraphernalia (§ 11364, subd. (a))—both misdemeanors. In a bench trial, the court found true three separate enhancement allegations regarding prior narcotics convictions. (§ 11370.2, subd, (c)); one in 2013 and two in 2015). In addition, the trial court found true two prior prison commitment enhancement allegations (Pen. Code, §667.5, subd. (b)). Finally, as to the methamphetamine possession for sale conviction, and because of his prior narcotics convictions, the trial court found defendant ineligible for probation. (Pen. Code § 1203.07, subd. (a)(11))." (Aldave I, supra, G055045.)
All subsequent statutory references are to the Health and Safety Code unless otherwise stated.
"[T]he court imposed a five-year prison term, comprising a 16-month sentence for the possession for sale count, an eight-month consecutive sentence for the false personation count, and a three-year consecutive sentence for one of the section 11370.2, subdivision (c) enhancements. As to the heroin and paraphernalia misdemeanor counts, the court suspended or stayed sentence. Pursuant to Penal code section 1385, subdivision (c), the remaining section 11370.2 enhancements were 'stricken for purposes of sentencing only,' as were the two Penal code section 667.5, subdivision (b), prior prison commitment enhancements." (Aldave I, supra, G055045.)
The clerk's transcript indicates the court suspended sentencing on the misdemeanors, but the reporter's transcript shows the court stayed the sentences, although there were no imposed sentences to stay.
On appeal, we rejected defendant's argument that the evidence was insufficient to sustain his convictions, but remanded the matter for resentencing based on a then recent change in the law which eliminated section 11370.2, subdivision (c)'s sentencing enhancements except under limited circumstances not applicable to defendant. We remanded the matter to the trial court "with directions to strike the section 11370.2, subdivision (c) enhancements and to resentence [defendant]." (Aldave I, supra, G055045.)
On remand, the court first heard and denied two Marsden motions and then struck the remaining section 11370.2, subdivision (c) enhancement, sentencing defendant to two years in state prison; 16 months as originally imposed on the possession for sale count and eight months as originally imposed on the false personation count. The court deemed that sentence served and ordered mandatory supervision terminated.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant timely filed a notice of appeal and we appointed counsel to represent him. Counsel did not argue against defendant but advised the court she was unable to find an issue to argue on defendant's behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given the opportunity to file written argument on his own behalf and he took advantage of that opportunity by filing an eight-page handwritten brief.
We have examined the entire record of defendant's resentencing and have not found an arguable issue on appeal. Accordingly, we affirm the postjudgment order.
DISCUSSION
Defendant's supplemental brief requests appellate counsel to withdraw. He asserts "She is not looking or fighting for the best of my interest. She has not file [sic] motions or petitions on my behave [sic]." Defendant lists the motions he believes should have been filed, including "a mistrial motion, 1538.5, a misconducts [sic] DA behavior, misconduct motion, which I believe would be a trial. Also a new trial motion and ineffective assistance of counsel motion . . . ." Defendant also complains that "[t]he sentencing judge mistakenly thought the 243 was a serious or violent felony, which it's not." Defendant continues by arguing "I think me Mrs. Aldave would have a right to at least attempt to get the trial judge and the D.A. got a retired judge to be a trial judge? That's a big issue I want to point out. This barred me my rights." Defendant's supplemental brief then launches into a long list of complaints about his trial, not his resentencing. Most of his complaints revolve around his perception that he received inadequate representation.
Defendant presumably is referring to Penal Code section 243, which prescribes the punishment for battery. But he was not charged or convicted of battery in this case. We take judicial notice of case No. G055968, another case in this court reviewing, inter alia, defendant's conviction of a violation of section 243, subdivision (d), battery causing serious bodily injury.
A retired judge, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution, presided over defendant's trial. --------
Defendant is clearly laboring under a mistaken impression that his perceived errors at trial are still open for review. They are not. "It is well established that '[t]he order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned.' [Citations.] . . . [W]hen an appellate court remands a matter with directions governing the proceedings on remand, '"those directions are binding on the trial court and must be followed. Any material variance from the directions is unauthorized and void."'" (People v. Ramirez (2019) 35 Cal.App.5th 55, 64.) Our directions on remand were limited but clear: "Defendant's sentence is reversed, and the matter is remanded to the trial court with directions to strike the section 11379.2, subdivision (c) enhancements and to resentence him. The trial court is directed to prepare an amended abstract of judgment. In all other respects the judgment is affirmed." The court did precisely what it was instructed to do. It had discretion to refashion the aggregate sentence to impose the original five-year term, but it chose not to do so. Instead, defendant's sentence was shortened by three years. There was no abuse of discretion. None of the matters raised by defendant were within the court's jurisdiction to consider on remand. To the extent defendant requests the removal of appellate counsel, that request is denied.
Counsel has also suggested we consider whether defendant's two Marsden motions were properly denied. We have reviewed the record of both motions and no error is perceived. Defendant was upset that counsel was not raising trial issues that the court had no power to consider. Appellate counsel's assessment that no arguable issue could be found was manifestly correct.
DISPOSITION
The postjudgment order is affirmed.
IKOLA, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.