Opinion
A132723
01-25-2012
THE PEOPLE, Plaintiff and Respondent, v. BONIFACIO ALEJANDRES-SANTOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County
Super. Ct. No. SCR598383)
Appellant Bonifacio Alejandres-Santos appeals from an 18-year state prison sentence he received, subject to local custody credits, after a jury found him guilty of assault with a firearm on a police officer (Pen. Code, § 245, subd. (d)(1)), a separate assault with a firearm (§ 245, subd. (a)(2)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), misdemeanor resisting arrest (§ 148, subd. (a)(1)), and possession of methamphetamine while armed (Health & Saf. Code, § 11370.1, subd. (a)).
All further undesignated statutory references are to the Penal Code.
Appellant's counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court's attention. No supplemental brief has been filed by appellant personally.
Appellant was charged by information filed on May 16, 2011, by the Sonoma County District Attorney with assault with a firearm on a police officer (§ 245, subd. (d)(1)), a separate assault with a firearm (§ 245, subd. (a)(2)), possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378), misdemeanor resisting arrest (§ 148, subd. (a)(1)), and possession of methamphetamine while armed (Health & Saf. Code, § 11370.1, subd. (a)). The information also alleged sentencing enhancements under sections 12022.53, subdivision (b), 12022.5, subdivisions (a), (d), and 12022, subdivision (c).
All dates are in the calendar year 2011, unless otherwise indicated.
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Time was not waived by appellant, and the case proceeded to trial on June 16. Trial proceeded thereafter every day, until the jury reached its verdict on June 23.
Jesus Canela testified at trial that on March 31, he was with his brother when he saw appellant driving a white Cadillac around his car while giving Canela and his brother "a bad look." About 30 minutes later, Canela saw appellant again near a car wash on Sebastopol Road stopped in the roadway. As Canela approached, he saw appellant pull out a gun and point it at him and his brother. There was another person in the vehicle with appellant. Appellant then drove off. Canela called 911 and reported the incident. A short time later, Canela was picked up by a female police officer and was taken to a location where he identified appellant as the person who drew the weapon and pointed it at him and his brother.
Santa Rosa police officer Orlando Macias testified that on March 31 he observed a gold-colored SUV drive by his marked cruiser at a high rate of speed. The officer pursued the SUV and eventually stopped it. Macias made contact with appellant, who was driving the SUV. There was a passenger in the SUV with appellant. Macias saw an open can of beer on the console of the vehicle. Appellant denied drinking and driving. Macias smelled alcohol and appellant's eyes were bloodshot. Appellant then produced an ID at the request of the officer, but not a license, registration, or proof of insurance.
Appellant refused to exit the vehicle as Macias requested, so the officer opened the door with the intention of pulling appellant out. As Macias was in the process of trying to get appellant to exit the SUV, he saw the barrel of a gun in appellant's right hand. It was pointed at the officer's midsection/groin area. He then struck appellant in the back of his head and kicked him. Appellant dropped the gun. Appellant was then subdued on the ground and the officer called for emergency backup.
Other officers soon arrived and helped Macias arrest appellant and his passenger. The SUV was searched. In the rear of the vehicle was a black box, which contained several bindles containing a rocky substance. The parties stipulated at trial that the bindles contained methamphetamine.
Santa Rosa police officer Jennifer James was one of the law enforcement personnel who responded to the call for assistance. She saw the weapon appellant had possessed laying on the ground outside the SUV and she secured it. As part of that process she noted that the hammer of the gun was locked back, so she had to "de-cock[]" it in order to secure it. James then pulled the magazine from the automatic's handle, and noticed that there was a live round in the chamber of the gun ready to be fired.
Leslie Vanderpool, an investigator with the Sonoma County District Attorney's Office, testified that he examined and test-fired the weapon appellant drew and pointed at Macias. It was fully operational and fired as designed.
The jury found appellant guilty of the following counts: (1) assault with a firearm on a police officer (§ 245, subd. (d)(1)), (2) a separate assault with a firearm (§ 245, subd. (a)(2)), (3) possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), (4) misdemeanor resisting arrest (§ 148, subd. (a)(1)), and (5) possession of methamphetamine while armed (Health & Saf. Code, § 11370.1, subd. (a)). The two firearm sentencing enhancements alleged in the information were also found true by the jury.
Sentencing took place on July 21. Prior to sentencing, a report was filed by the probation department. In it, the report chronicled appellant's past criminal record consisting of misdemeanor convictions from 2005 until 2010, for which appellant had received six grants of probation. The department recommended that appellant receive a state prison sentence for the current convictions aggregating 20 years.
At sentencing, the trial judge refused to grant probation, noting that based on the proven firearm allegations, probation was not an option, but that if it were, the court would find appellant not suitable for such a grant. After reciting factors in aggravation and mitigation, and after concluding that the two assault convictions were separate incidents involving different victims, the court announced that consecutive sentences were appropriate. As a result, appellant was ordered to serve the midterm of six years for the assault on a police officer (§ 245, subd. (b)(1)), to which the court added a 10-year consecutive sentence for one of the firearm enhancements (§ 12022.53, subd. (b)). Also added were one-year consecutive terms for the second assault, and for one of the methamphetamine possession convictions. Sentencing for the balance of the convicted counts were stayed pursuant to section 654. Credit for time served, and fines and penalties, including restitution to Canela, were also ordered.
Upon our independent review of the record, we conclude there are no meritorious issues to be argued or that require further briefing on appeal.
The record has been reviewed, and we conclude that appellant's conviction and true findings as to the enhancements were supported by substantial evidence. No potentially prejudicial error occurred during the course of the trial. We also discern no error in sentencing. The refusal to grant probation and the sentencing choices made by the trial court were consistent with applicable law, supported by substantial evidence, and were well within the discretion of the trial court. The restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by counsel.
DISPOSITION
The judgment is affirmed.
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RUVOLO, P. J.
We concur:
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REARDON, J.
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SEPULVEDA, J.