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People v. Barocio-Magana

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Dec 22, 2011
A133057 (Cal. Ct. App. Dec. 22, 2011)

Opinion

A133057

12-22-2011

THE PEOPLE, Plaintiff and Respondent, v. ANATOLIO BAROCIO-MAGANA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCR-582233 & SCR-596604)

Appellant Anatolio Barocio-Magana was sentenced to serve nine years in state prison after pleading no contest to carjacking, participating in a criminal street gang, and committing a battery on a correctional officer. Appellant's court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. We have done so and find no issues that merit further briefing.

FACTUAL AND PROCEDURAL BACKGROUND


Carjacking Incident

On April 19, 2010, Cindy Rivas-Deleon met the driver of a Cadillac Escalade at a car wash. She was a friend of the driver's son and claimed to need money. As the driver sat in his car talking with Rivas-Deleon, appellant approached the vehicle and, while appearing to hold a gun underneath his sweatshirt, told the driver to put his hands up. A second man struck the driver in the face and opened the door, causing the driver to fall onto the pavement. The man that struck the driver then got in the vehicle and drove off.

Because the conviction results from a plea, the facts are derived from the probation report.

A witness to the incident saw a white sedan pull into the car wash and speed off with the Escalade five minutes later. The witness identified appellant's codefendant, Gilfredo Barocio-Magana, as the one who drove off in the Escalade. The victim of the carjacking identified appellant as the man who had ordered him to put his hands in the air, and he identified Rivas-Deleon as the woman who had approached him at the car wash. Police recovered the Escalade based upon information provided in an anonymous phone call to the victim's son.

Rivas-Deleon, whose fingerprints were found in the Escalade, was questioned and admitted that she, appellant, and the third man had planned to rob the victim by luring him to the car wash. She denied that a gun was involved and expressed surprise that appellant and the other man had been identified because their faces had been covered below their eyes during the incident.

Appellant was taken into custody on a parole violation on April 25, 2010. He refused to speak to the officer without an attorney present. A criminal street gang evaluation described appellant as an active Sureño gang member. Appellant had various gang-related tattoos on his body, including the word "SURENO" on his lower back. In addition, he had associated with Sureño gang members and had identified himself in the past as a gang member while being booked into jail.

Jail Incident

On September 27, 2010, sheriff's deputies looked in on appellant and his codefendant, Gilfredo Barocio-Magana, as they were singing loudly in their jail cell. The deputies saw appellant trying to flush something down the toilet. The men appeared intoxicated and smelled of alcohol. Appellant was handcuffed and escorted out of the cell. As he was being led away, appellant refused to comply with directions and verbally abused the deputies and jail staff. After he was led into a cell, appellant lunged at one of the deputies and drove him into the wall with his shoulder. Appellant continued to resist and sustained an abrasion to his head. When the cell that housed both men was later examined, a deputy found a trash bag in the toilet that contained a small amount of a yellow-orange liquid. The cell smelled strongly of "Pruno."

Procedural History

In an information filed January 3, 2011, the Sonoma County District Attorney charged appellant in case number SCR-582233 with carjacking (Pen. Code, § 215, subd. (a)) and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (b)). It was further alleged that appellant had suffered a prior strike (Pen. Code, § 1170.12) and had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).

The district attorney filed an information in case number SCR-596604 on March 16, 2011, charging appellant with possessing alcohol in county jail (Pen. Code, § 4573.8) and with battery on a correctional officer (Pen. Code, § 831). The information contained the same enhancements for prior offenses as alleged in case number SCR-582233.

On June 2, 2011, appellant agreed to a negotiated disposition in each of the two cases. In case number SCR-582233, he agreed to enter no contest pleas to the carjacking charge and to a misdemeanor charge of participating in a criminal street gang, with the balance of the charges and enhancements to be dismissed. The parties agreed to a stipulated upper term of nine years on the carjacking offense. In case number SCR-296604, appellant agreed to enter a no contest plea to the charge of battery on a correctional officer, with the balance of the charges and enhancements to be dismissed. In exchange for his plea, appellant was to receive a stipulated three-year term on the battery offense to be served concurrently with the term in case number SCR-582233. The court accepted the no contest pleas, found a factual basis for the pleas, and found that appellant had been informed of his rights and had knowingly and voluntarily waived those rights.

The court sentenced appellant in accordance with the plea agreement. In case number SCR-582233, the court imposed the upper term of nine years for carjacking plus a concurrent one-year sentence on the misdemeanor charge of participating in a criminal street gang. In case number SCR-596604, the court imposed the upper term of three years for battery on a correctional officer to be served concurrently with the term in case number SCR-582233. In case number SCR-582233, the court awarded custody credits totaling 550 days, consisting of 479 days of actual custody plus 71 days of conduct credits pursuant to Penal Code section 2933.1. In case number SCR-596604, the court awarded custody credits totaling 373 days, consisting of 324 days of actual custody plus 49 days of conduct credits pursuant to Penal Code section 2933.1.

In a letter addressed to the trial court, appellant's counsel sought additional conduct credits in case number SCR-596604, contending that the 15 percent credit limitation is inapplicable because battery on a correctional officer is not a violent felony for purposes of Penal Code section 2933.1. In an order filed November 9, 2011, the trial court denied the request. Although the court agreed that battery on a correctional officer is not a violent felony for purposes of Penal Code sections 2933.1 and 667.5, subdivision (c), the court explained that a defendant sentenced concurrently for multiple offenses is subject to the 15 percent credit limitation for each offense if any of the offenses is a violent felony. (People v. Nunez (2008) 167 Cal.App.4th 761, 765-768.)
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The court imposed restitution fines (Pen. Code, § 1202.4) of $1,800 and $200, respectively, in case numbers SCR-582233 and SCR-596604, and imposed but stayed parole revocation fines (Pen. Code, § 1202.45) in the same amount in each case. The court also imposed a court security fee of $120, composed of $40 for each of the three counts of which appellant was convicted. (Pen. Code, § 1465.8.) Appellant was required to provide blood and saliva samples pursuant to Penal Code section 296, subdivision (a)(1).

Appellant filed a timely notice of appeal and sought a certificate of probable cause on the ground the "trial court did not give him sufficient time to prepare a defense." The trial court granted the request for a certificate of probable cause.

DISCUSSION

Appellant's counsel filed a brief identifying no potentially arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. Appellant was afforded an opportunity to file a supplemental brief with this court but did not do so. We have reviewed the entire record and conclude no issue warrants further briefing.

DISPOSITION

The judgment is affirmed.

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McGuiness, P.J.
We concur:

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Pollak, J.

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Jenkins, J.


Summaries of

People v. Barocio-Magana

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Dec 22, 2011
A133057 (Cal. Ct. App. Dec. 22, 2011)
Case details for

People v. Barocio-Magana

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANATOLIO BAROCIO-MAGANA…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

Date published: Dec 22, 2011

Citations

A133057 (Cal. Ct. App. Dec. 22, 2011)