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People v. Ashcraft

California Court of Appeals, First District, Second Division
Apr 13, 2009
No. A122746 (Cal. Ct. App. Apr. 13, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RAYMOND EARL ASHCRAFT, Defendant and Appellant. A122746 California Court of Appeal, First District, Second Division April 13, 2009

NOT TO BE PUBLISHED

Sonoma County Super. Ct. No. SCR 483178

Kline, P.J.

Raymond Earl Ashcraft appeals from a plea of no contest to a charge of attempted murder (Pen. Code, § 664/187, subd. (a)) and admission of intentionally discharging a firearm within the meaning of section 12022.53, subdivision (c). His court-appointed attorney has filed a brief raising no issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

All statutory references are to the Penal Code.

PROCEEDINGS BELOW AND FACTS

I.

By a two-count information filed on June 30, 2006, appellant and his codefendant Joseph Pina were charged with conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)–count I), and attempted murder (§ 664/187, subd. (a)–count II). It was additionally alleged that the attempted murder was willful, deliberate, and premeditated (§ 664, subd. (a)). As to both counts, the information alleged that appellant personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and did so in a manner that proximately caused great bodily injury. Finally, it was alleged appellant suffered a prior prison term. (§ 667.5, subd. (b).)

On October 17, 2006, appellant filed a motion for substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, which he withdrew eight days later. Appellant subsequently refiled the Marsden motion, and it was denied on January 22, 2008.

On January 25, 2007, appellant moved to compel disclosure of the identity of a confidential informant, which was denied on May 25, 2007.

On May 21, 2008, after codefendant Joseph Pina plead no contest to attempted murder, an amended information was filed charging appellant only with three felony counts: conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)), attempted murder (§ 664/187, subd. (a)), and mayhem (§ 203). As to the second count, it was alleged that the attempted murder was willful, deliberate and premeditated (§ 664, subd. (a)). As to all three counts, it was also alleged that appellant personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and that he did so in a manner that proximately caused great bodily injury (§ 12022.53, subd. (d)). Finally, it was again also charged that appellant suffered a prior prison term (§ 667.5, subd. (b)).

II.

The preliminary hearing was conducted on June 16, 2006, at which Karina Vigil, the victim, was the sole witness. Vigil testified that at 11:30 p.m. on February 27, 2006, she visited her friend Lisa McQuaid at the latter’s apartment in Santa Rosa, at which about seven or eight others were also present. At first, the only person present whom Vigil knew was appellant. However, at some point Joseph Pina also showed up. Vigil had spoken on the phone with Pina a week or two earlier, at which time he asked her whether she was able to “save” her cousin Rogelio Roman, who owed Pina $600. Vigil, who knew Pina, told him she would “try” to obtain the necessary amount of money. When he saw her at McQuaid’s apartment, Pina asked Vigil how he could locate her boyfriend Tim, apparently believing he might be a source of funds or could help locate Rogelio Roman. She provided him her cellphone which contained the last phone number from which Tim had called her. Pina dialed that number and Vigil heard him say to the person who answered: “tell Tim that his girlfriend needed him and if he didn’t call back, it would the last time that Tim would see me.”

At that point Pina and appellant took Vigil’s purse and asked her to empty her pockets, which were empty. Appellant ripped the purse apart to make sure it contained no money. Pina then handed appellant a black semiautomatic gun and told Vigil that if she was unable to find Rogelio Roman and Tim “I would have to take the fall, and that’s just how it goes.” When Vigil asked appellant for her driver’s license, he “laughed and said I wasn’t going to need it where I was going.”

At some point Vigil received a call on her cellphone from Tim, who was worried about the message Pina left for him and Vigil’s predicament. Pina told appellant to “cut the call,” but by that time Tim had hung up. Pina spent some time on Vigil’s cellphone trying to trace calls she had received. When this proved fruitless, Pina told appellant to take Vigil to Windsor in Lisa McQuaid’s car, with Vigil driving. Pina confirmed that appellant still had the gun, and said “you know what to do with it.”

Appellant ordered Vigil to circle around West Third Street for awhile. He then phoned Pina, told him where they were and said they would be returning to McQuaid’s apartment. Vigil heard Pina tell appellant to return to McQuaid’s apartment. Vigil testified that when they arrived Pina yelled at appellant “to get back in the car, to go to Windsor to the Garcia’s, and not to fucking come back with me.”

When, after midnight, they were “far into the back streets” of Windsor, appellant forced Vigil to get out of the car. He said he was “sorry that he had to do it because it was either him or me” and hit her with the gun and then shot her in the eye. When she began crying, appellant told her to “shut up” and shot her again. Appellant then got in the car and left. Eventually, a deputy sheriff came to her aid. Vigil lost her left eye and still has a hole in her jaw.

On cross-examination, Vigil testified that Pina had been her boyfriend briefly in 1994 or 1995, and there had been tension between them since then; that on the day in question she had used methamphetamine and marijuana; that her cousin Rogelio Roman had asked her to help him raise $600 to pay his debt to Pina; and that Tim, who was her friend but not “boyfriend,” was also a friend of Rogelio Roman. According to Vigil, Roman had paid appellant an agreed upon amount for “dope,” but Ashcraft kept the money himself and falsely told Pina that Roman stole the dope.

At the close of the hearing, defense counsel argued to the court that Vigil’s testimony showed only “a very serious and aggravated 245 [i.e, assault with a deadly weapon or force likely to produce great bodily injury],” but not an attempted premeditated murder. The district attorney disagreed, claiming that “[l]eaving somebody in the middle of Sonoma County in the middle of the night with being shot in the head is an intent to kill.”

Agreeing with the district attorney, the trial court held appellant (and Pina) to answer to the charges alleged in the information.

III.

On May 27, 2008, pursuant to a negotiated disposition, appellant entered a plea of no contest to attempted murder and admitted intentionally discharging a firearm within the meaning of section 12022.53, subdivision (c). The remaining counts and allegations were dismissed, and the parties agreed appellant would be sentenced to a state prison term of 25 years.

On August 13, 2008, appellant was sentenced to the agreed upon term as follows: the low term of five years for attempted murder, plus 20 years for the firearm enhancement. The court awarded appellant 987 days of credit for time served, including 859 actual days plus 128 days conduct credit. (§ 2933.1) Appellant was ordered to pay a court security fee of $20, a $5,000 restitution fine, another $5,000 restitution fine that was suspended unless parole is revoked, and victim restitution in an amount to be determined by the Victim Compensation Board. (§§ 1465.8, subd. (a)(1), 1202.4, subd. (b); 1202.45; 1202.4, subd. (f).)

A timely notice of appeal was filed on September 17, 2008, and thereafter amended on October 9, 2008.

DISCUSSION

During the period of time from arraignment to sentencing, appellant was represented by able counsel.

There is no basis in the record upon which to doubt appellant’s mental competence to participate in the proceedings and enter his plea.

The court fully informed appellant of the consequences of his plea and the rights he would be giving up by his plea before it was entered (Boykin v. Alabama (1969) 395 U.S. 238, In re Tahl (1969) 1 Cal.3d 122, 132). Appellant waived those rights orally and in writing. Accordingly, the record shows that appellant’s plea was fully informed and freely made.

Appellant’s trial counsel stipulated to a factual basis for the plea based on the police reports.

The denial of appellant’s Marsden motion was not erroneous.

There was no sentencing error.

There are no legal issues that require further briefing.

The judgment and sentence imposed are affirmed.

We concur: Lambden, R., Richman, J.


Summaries of

People v. Ashcraft

California Court of Appeals, First District, Second Division
Apr 13, 2009
No. A122746 (Cal. Ct. App. Apr. 13, 2009)
Case details for

People v. Ashcraft

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RAYMOND EARL ASHCRAFT, Defendant…

Court:California Court of Appeals, First District, Second Division

Date published: Apr 13, 2009

Citations

No. A122746 (Cal. Ct. App. Apr. 13, 2009)