Opinion
H050395
06-27-2023
THE PEOPLE, Plaintiff and Respondent, v. AGUSTIN COLIN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 21CR03198)
GROVER, J.
Defendant Agustin Colin appeals from a final judgment in a criminal action. Appointed counsel filed an opening brief summarizing the case but raising no issues. We notified defendant of his right to submit written argument on his own behalf. Defendant has not done so.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and find no arguable issue on appeal. Following the California Supreme Court's direction in Kelly, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.)
I. WENDE/KELLY REVIEW
Defendant's negotiated disposition resolved three felony cases. According to testimony from the preliminary hearing in case No. 20CR00759, a Watsonville police officer responded to a report of someone brandishing a gun at a restaurant in January 2020. He and another officer reviewed video of the incident, which corroborated the report, and the second officer identified defendant as the man with the gun. A third officer searched defendant's home and found a shirt matching the one worn by the man with the gun, and defendant admitted to having a loaded gun at the restaurant. Defendant was charged with possessing a firearm as a convicted felon. (Pen. Code, § 29800, subd. (a)(1); unspecified statutory references are to the Penal Code.)
According to testimony from the preliminary hearing in case No. 20CR01030, a Watsonville police officer responded to a report of an armed robbery at a grocery store in February 2020. A loss prevention officer reported seeing two men leaving the store with four cases of beer and a bouquet of roses that they had not paid for. When the loss prevention officer confronted the two men, the man with the roses lifted his shirt to reveal a gun and asked, "Do you want to try me?" The two men then left the store with the beer and roses. After reviewing video of the incident, an officer located defendant wearing similar clothing to the man with the roses. Defendant fled and attempted to discard a gun, which police recovered. Police also found beer and roses in a car parked nearby, which matched a car seen leaving the store parking lot around the time of the robbery. Defendant was charged with second degree robbery (§ 211, count 1), possessing a firearm as a convicted felon (§ 29800, subd. (a)(1), count 2), possessing a firearm not registered to him (§ 25850, subd. (c)(6), count 3), and misdemeanor resisting a peace officer (§ 148, subd. (a)(1), count 4). Count 1 also included a firearm allegation (§ 12022.53, subd. (b)) and an on- bail allegation (§ 12022.1).
According to testimony from the preliminary hearing in case No. 21CR03198, a Santa Cruz County sheriff's deputy investigated an assault at the county jail in July 2021. Video of the assault showed defendant and three other men attacking the victim, pushing him into a cell, and defendant closing the cell door. After several minutes, the five men are shown coming out of the cell. Defendant is seen punching and kicking the victim, and another man hit the victim several times with a wooden mop handle. Three of the assailants (including defendant) followed the victim into his own cell, and defendant prevented him from pressing an emergency call button. The victim suffered an orbital fracture. Defendant was charged with kidnapping (§ 207, subd. (a), count 1), battery causing serious bodily injury (§ 243, subd. (d), count 2), assault with a deadly weapon (§ 245, subd. (a)(1), count 3), assault with force likely to produce great bodily injury (§ 245, subd. (a)(4), count 4), false imprisonment by violence (§ 236, count 5), and witness dissuasion by force or threat (§ 136.1, subd. (c)(1), count 6). Count 4 included an allegation that defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).)
In exchange for a stipulated sentence of 15 years eight months, defendant pleaded no contest in June 2022 to possessing a firearm as a convicted felon in case No. 20CR00759; second degree robbery in case No. 20CR01030; and assault with force likely to produce great bodily injury in case No. 21CR03198, all felony counts. He admitted the firearm and bail allegations in case No. 20CR01030, and pleaded no contest to one count of witness dissuasion (§ 136.1, subd. (b)(1)) in case No. 21CR03198 as a misdemeanor. The prosecution agreed to move to dismiss all remaining counts and strike punishment for the bail enhancement in case No. 20CR01030.
Defendant requested a hearing under People v. Marsden (1970) 2 Cal.3d 118 in August 2022. The trial court denied defendant's Marsden motion after a hearing. In keeping with the negotiated disposition, it sentenced defendant to 15 years 8 months in prison, consisting of the upper term of five years for second degree robbery (§§ 211, 213, subd. (a)(2)) and a consecutive 10-year term for the firearm enhancement (§ 12022.53, subd. (b)) in case No. 20CR01030; a consecutive term of eight months (one-third of the middle term) for possessing a firearm as a convicted felon (§§ 18, subd. (a), 29800, subd. (a)(1)) in case No. 20CR00759; and a concurrent middle term of three years for assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)) in case No. 21CR03198. In case No. 21CR03198, the trial court imposed a concurrent sentence of 180 days in county jail for misdemeanor witness dissuasion (§ 136.1, subd. (b)).
Defendant received 462 days of presentence custody credit based on 402 actual days and 60 days' conduct credit (§ 2933.1).
Defendant obtained a certificate of probable cause (§ 1237.5) and filed a notice of appeal in September 2022 challenging "the validity of the plea or admission" in case No. 21CR03198 only. Defendant explained in his request for a certificate of probable cause that he "felt rushed/pressured into taking [his] offer."
We have reviewed the entire record and find no arguable issue.
II. DISPOSITION
The judgment is affirmed.
WE CONCUR: Greenwood, P. J. Lie, J.