Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA086289, Robert M. Martinez, Judge.
Carla Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
Richard Enrique Cardenas appeals from the judgment entered following his plea of no contest to 10 counts of second degree robbery (Pen. Code, § 211), during the commission of each of which he personally used a firearm (§ 12022.53, subd. (b)). The trial court sentenced Cardenas to 28 years in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On or about March 17, 2009, Cardenas approached several individuals at Creekside Park in Los Angeles County, brandished a firearm and demanded that they give him their money and valuables. From the park, Cardenas got into a car and drove approximately three miles to a Starbucks Coffee store and, a short time later, to a Mormon church. At each of these locations, Cardenas again approached a number of individuals, brandished a firearm and demanded that they give him their valuables. In all, Cardenas robbed at gunpoint 10 victims within a period of approximately 30 minutes.
2. Procedural history.
a. The plea.
In counts 2 to 11 of an information filed on June 2, 2009, Cardenas was charged with 10 counts of second degree robbery (§ 211), during the commission of each of which he personally used a firearm (§ 12022.53, subd. (b)).
At proceedings held on September 21, 2009, counsel for Cardenas indicated that Cardenas wished to waive his constitutional rights and enter a no contest plea to each count. In return, he would have the right to “select a sentencing judge some time in the future[.]” The trial court, after determining that defense counsel had been present at the preliminary hearing and had “cross-examin[ed] and observe[d] the witnesses during both direct and cross[-examination, ]” asked whether counsel still believed that it was in Cardenas’s best interest “to enter a no contest plea to an open plea... with an apparent statutory maximum of 54 years[.]” Counsel, indicating that the decision was based on “all of [his] evaluations and... experience as a criminal defense lawyer[, ]” stated that it was. The trial court then indicated that it appeared that counsel and Cardenas had selected Judge Robert Martinez as the sentencing judge.
A short time later, the following colloquy occurred: “The court:... You understand that in pleading what we call ‘open’ to counts 2 through 11, nobody is making any guaranties as to what you might receive in terms of a sentence? [¶] [Cardenas]: Yes, Sir. [¶] The court: Do you understand that? [¶] And you understand it could be anything up to 54 years? [¶] [Cardenas]: Yes, Sir. [¶] The court: Maximum total? [¶] [Cardenas]: Yes, Sir. [¶] The court: And you’ve discussed all of these problems and pitfalls or potential good points with... your lawyer? [¶] [Cardenas]: Yes, Sir. [¶] The court: All right. Now, the form says you want to enter a no contest plea. [¶] You understand I’m going to believe you when you tell me it’s no contest to counts 2 through 11, and I’m going to convict you on the no contest plea, and you’ll be sentenced on these charges just as if you’d entered a guilty plea? [¶] Do you understand all of that? [¶] [Cardenas]: Yes, Sir.”
After Cardenas’s counsel explained to Cardenas that, should he ever again be convicted of a felony, each of his 10 convictions would amount to a “strike” within the meaning of the Three Strikes law, Cardenas waived his right to a jury or court trial, his right to subpoena witnesses and present a defense, his right to confront and cross-examine the witnesses against him and his privilege against self-incrimination. For one last time, the trial court asked Cardenas, “With the discussion with your lawyer, as well as everything we’ve told you here today, do you wish to proceed and enter the open plea to each of these counts?” Cardenas responded, “Yes, Sir.”
Cardenas pled “[n]o contest” to “counts 2 through 11, all separate violations of Penal Code section 211, all felonies, all strikes[.]” Cardenas then admitted that, during the commission of each of the robberies alleged in counts 2 through 11, he personally used a handgun within the meaning of section 12022.53, subdivision (b). After Cardenas entered his pleas, the trial court stated: “The court will accept the no contest pleas as to counts 2 through 11, will convict the defendant on those no contest pleas, as well as find the defendant has freely admitted the violations of section 12022.53[, subdivision] (b) as to each of the charged counts.... [¶] And the court will further find the defendant is freely, voluntarily, understandingly, and knowingly entering the no contest pleas to all [10] counts, as well as the gun enhancement[s] pursuant to section 12022.53[, subdivision] (b), with knowledge of the consequences, both immediate and long term, and there’s a factual basis.”
b. Sentencing.
The trial court had advised Cardenas that he had a right to be sentenced within 21 days of the date of his plea. However, his counsel had asked that Judge Martinez impose sentence in November, “way past the 20 days for a speedy sentencing.” The trial court had asked Cardenas if he would agree “to be sentenced on November 24th or within 30 days thereafter” and Cardenas had indicated that he would.
Sentencing, however, did not occur until May 25, 2010. On that day, Judge Martinez indicated that he had “read and considered the original probation report dated April 7, 2009; the transcript of the plea entered September 21, 2009; [the] supplemental report dated November 24, 2009; the defense sentencing memorandum and a supplement to that memorandum submitted on behalf of [Cardenas]; [and] letters submitted on his behalf.”
Defense counsel argued that all of the victims had retrieved their items, so “there was... no restitution issue in this case.” In addition, counsel stated: “I would also like to point out specifically regardless of the fact that there may have been ten counts here, all of the crimes were committed within a 22-minute time period. They also were committed within a very close distance, proximity of each other. Therefore, we would ask that the court treat this as one crime as a whole. This was not a situation where Mr. Cardenas along with any other defendants were sitting and plotting for days prior to the actual incident. It was a lapse in judgment that Mr. Cardenas employed for a very brief period of time.”
In his sentencing memorandum, Cardenas indicated that, “during the time of the crimes, [he] was suffering from 96 hours of sleep deprivation and was under the influence of methamphetamine and alcohol. Moreover, [he was] influenced by [a] co-defendant, who was the mastermind behind the crimes, Anthony Romero[.]” Cardenas further asserted that, although the offenses were serious, “none of the victims experienced any type of physical damage and their personal property was returned.” In addition, the gun used during the robberies was not loaded and was not registered to Cardenas. Cardenas indicated that he is “very remorseful” for the crimes committed and “has... participated in several rehabilitation programs.” Cardenas also has “a very strong support system, ” consisting of family and friends, “which will continue to support him if he receives alternative sentencing or a limited sentence.” Even the mayor of El Monte, Ernie G. Gutierrez, “has been closely following this case and continues to speak very highly” of Cardenas.
Romero was charged in count 1 of the information with grand theft of personal property in violation of section 487, subdivision (a).
With regard to his cognitive abilities, Cardenas indicates that “[a]fter extensive evaluation by an appointed expert witness..., Dr. [David J.] Jiminez, it has been concluded that [he, Cardenas, ] has a seriously disturbed perception of reality due to [m]ild [m]ental [r]etardation, [b]rain [d]amage and Epilepsy. [Nineteen-year-old Cardenas’s] scores suggest that he would have difficulty living independently because of his cognitive impairment and his brain capacity resembling [that of] a 6[-]year old child.”
In a letter addressed to the victims of the robberies and submitted to the court, Cardenas wrote: “Words will never express all of my remorse. My name is Richard Cardenas[.] I’m 19 years old and had a really bad drug problem.... I’ve made really bad decisions. I’m not the violent person which these drugs have painted me to be. I honestly had no intentions o[f] harming any of [the victims].... I accept full responsibility for my actions and I ask you to please find it in your heart to forgive me for my stupidity. I pray to the [L]ord you will accept my sincere [apology]. I am deeply sorry for what I’ve done. Please have mercy on my life.”
In concluding his argument to the trial court, defense counsel asked the court to “reconsider the fact that all the victims were not harmed from a physical standpoint and from a restitution standpoint. They all recovered their items.” Counsel continued, “In the police report, none of those items were even damaged; and they were relatively small items––camera, cell phones. They were all retrieved[.] [N]one of them were damaged. There was no physical damage[] involved whatsoever. [¶]... [M]y final key point is just to remember, although the court must consider the item used in this matter, which was a gun, please keep in mind that despite the circumstances that Mr. Cardenas was undergoing at the time, he still had the wherewithal to not load his gun. All of these crimes were committed without the gun being loaded. This was not a situation where Mr. Cardenas had the actual intent to harm anybody. Once again, he was at the worst merely trying to facilitate a drug habit.... With that, Your Honor, we ask that the court take into consideration these facts and grant the least restrictive punishment for Mr. Cardenas.”
After several of Cardenas’s relatives, as well as Cardenas, himself, addressed the court, the People were given the opportunity to argue. The prosecutor began by referring to Cardenas’s prior record. He stated: “I can certainly appreciate the comments from the family members, ..., certainly about giving second chances.... But looking at [Cardenas’s] juvenile history[, it indicates he had] a sustained petition on two different counts, one is carrying [a] concealed weapon and [the other is a] vandalism charge, [for which] he was placed on suitable placement for three years, two months.” The prosecutor then indicated that Cardenas later acquired sustained petitions for two counts of burglary and one count of petty theft. Cardenas was again suitably placed for three years and two months. The prosecutor stated: “[C]ertainly [Cardenas] had the opportunity to have his second chance on two different occasions when he came out of suitable placement and then he goes and commits this crime. Now, if he had a clean record then, yes, I could understand the court granting leniency. But when a court has given that opportunity, given that second chance, given the opportunity to go to New Beginnings and he chooses not to, well, that’s on the defendant. He made a voluntary decision as to his actions on March 17, 2009.”
The prosecutor emphasized that not all the robberies took place at one location. Some occurred at Creekside Parkway, the next set of robberies occurred three miles up the street at a Starbucks Coffee store and the last set of robberies took place at a Mormon church. At one of those locations, Cardenas robbed a 70-year-old woman. As far as the prosecutor was concerned, “At some point, ..., [Cardenas] would have to [have] recognize[d] [that] what [he was] doing [was] wrong.” In addition, the prosecutor indicated that the victims did not know that the gun was not loaded. Although Cardenas knew, the victims were “at that moment... scared for their li[ves] because they [did not] know what this [person was] going to do... so they [gave him] their property.”
The prosecutor indicated that the trial court was prohibited from granting Cardenas probation under sections 1203.06, subdivision (a)(1)(B) and 1170.1. The prosecutor recommended a base term of five years for the robbery and a 10-year enhancement for Cardenas’s use of a gun during the offense. The prosecutor stated: “So you have a minimum of 15 years at this point, that’s minimum. He can’t go to New Beginnings placement. He cannot go to suitable placement because the law does not provide for that.” With regard to the rest of the counts, the People requested a term of 28 years. The prosecutor stated: “I’m not asking this court to run consecutive every single count, but what I am asking the court to do is run consecutive [terms for the robberies which occurred] at different locations. At Creekside, ... [there were] five separate victims.... [C]ount 8 took place at Starbucks. Count 9 took place at the Mormon church.”
On a more personal level, the prosecutor noted: “Now, counsel indicates [Cardenas’s] inability to comprehend, but he certainly has the ability to become a Marine. He certainly has the ability to communicate with the senator. That is a person who knows the difference between right and wrong, he knows what he did.”
At some point in the proceedings, it had been indicated that Cardenas had hoped to join the Marine Corps.
In response to the prosecutor’s argument, defense counsel indicated that, with regard to the charges of vandalism and burglary, Cardenas was “merely arrested.” The charges were later dropped. As to the present case, counsel for Cardenas indicated that some of the victims had stated that they had not been afraid when Cardenas approached them. Counsel stated: “So, Your Honor, taking into consideration why we didn’t take the 25-year offer given by the People, well, perhaps this was probably why.” Counsel concluded: “[W]hen the court is looking at whether or not to impose a low term, mid[-]term, or maximum term in this case, I think we’ve presented to the court here today multiple factors in mitigation including, but not limited to, the actual victims not being harmed, the actual––from a property standpoint nor from an actual physical standpoint, we presented evidence in mitigation with respect to what my client’s mental capacity was and what he was physically and mentally experiencing at the time that these robberies were made.”
After listening to the parties argue, the trial court addressed Cardenas and stated: “I have to decide what’s fair. And I listened to your attorney and I listen[ed] to the defense and I listen[ed] to the prosecution. What’s fair to society and what’s fair to you? [¶] Twenty-eight years sounds fair. It takes into account all the circumstances and all the victims.” The trial court then sentenced Cardenas to 27 years, 4 months in prison. Cardenas was awarded presentence custody credit for 435 days actually served and 65 days of good time/work time, for a total of 500 days. He was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200 parole revocation restitution fine (§ 1202.45), a $330 court security fee (§ 1465.8, subd. (a)(1)), a $330 conviction assessment (Gov. Code, § 70373) and, as to each count, a $10 “theft fine” (§ 1202.5).
On December 8, 2010, the trial court corrected the sentence to impose a total term of 28 years. As to count 2, the “base term, ” the trial court imposed the upper term of five years in state prison. For counts 3, 4 and 5, the court imposed one-third the mid-term, or one year in prison for each count. For counts 6 to 11, the court imposed concurrent terms of three years in prison. For the firearm enhancements, the court imposed a term of 10 years with regard to count 2. For counts 3, 4 and 5, the trial court imposed terms of one-third the mid-term, or terms of three years, four months. For counts 6 to 11 the trial court imposed concurrent terms of 10 years. In total, the trial court sentenced Cardenas to 28 years in state prison.
On December 8, 2010, the trial court modified the $330 court security fee to reflect a fee of only $300, or $30 per count, and the $330 criminal conviction assessment to reflect an assessment of only $300, or $30 per count.
Cardenas filed a timely notice of appeal on June 2, 2010. He filed an amended notice of appeal on July 22, 2010.
This court appointed counsel to represent Cardenas on appeal on August 17, 2010.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed December 21, 2010, the clerk of this court advised Cardenas to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.