Opinion
F079259
09-10-2019
THE PEOPLE, Plaintiff and Respondent, v. ANGEL VALENTIN FERNANDEZ, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1491669)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Detjen, Acting P. J., Franson, J. and Snauffer, J.
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STATEMENT OF APPEALABILITY
Appellant Angel Valentin Fernandez appeals, pursuant to Penal Code section 1237, subdivision (b), from the denial of his petition for resentencing filed on April 11, 2019, and denied on April 19, 2019. This appeal is from an order which finally disposes of all issues between the parties. (California Rules of Court, Rule 8.304.) A timely notice of appeal was filed on May 1, 2019.
STATEMENT OF THE CASE
In an information filed on November 20, 2015, Fernandez was charged with felony attempted murder (Pen. Code, § 664/187, subd. (a)), committed on August 28, 2015. It was further alleged that he acted with premeditation and deliberation and that he personally and intentionally discharged a firearm proximately causing great bodily injury (§ 12022.53, subd. (d).)
Undesignated statutory references are to the Penal Code.
On January 30, 2018, Fernandez changed his plea of not guilty to a negotiated plea of no contest to assault with a firearm (§ 245, subd. (a)(2)) and admitted a violation of section 12022.5, subdivision (a). He was sentenced to a total of 12 years in state prison comprised of the low term of two years for the assault, enhanced by ten years pursuant to section 12022.5, subdivision (a).
Fernandez was ordered to pay a $1,000 felony restitution fine; a probation revocation restitution fine in the same amount was imposed and stayed. The court imposed a $40 court operations assessment and a $30 conviction assessment. Fernandez was given credit for 1,012 days in custody. He did not appeal from the judgment.
On April 11, 2019, Fernandez filed a petition for modification of his sentence "pursuant to SB 620." On April 19, 2019, the trial court denied his petition, ruling as follows:
"By way of petition for modification of sentence, petitioner asks the court to exercise judicial discretion to strike a firearm enhancement and then to resentence him. [¶] On January 1, 2018, Senate Bill No. 620 went into effect, ending the statutory prohibition on a court's ability to strike a Penal Code section 12022.5 or section 12022.53 firearm enhancement. Because its effect mitigates punishment for a particular criminal offense, Senate Bill No. 620 is retroactive to cases not yet final. (In re Estrada (1965) 63 Cal.2d 740, 745.) [¶] Petitioner's case was final on January 30, 2018, the sentencing date; petitioner waived appellate rights and no appeal was filed. Accordingly, Senate Bill No. 620 does apply retroactively to his case. [¶] Additionally, this sentence was a result of a plea bargain. The prosecution allowed defendant to plea to a lesser charge and a lesser firearm enhancement. [¶] Accordingly, Petitioner's request for resentencing and an evidentiary hearing is denied."
On May 1, 2019, Fernandez appealed from the denial of his petition.
STATEMENT OF FACTS
It was stipulated that the factual basis for the plea could be found in the preliminary hearing transcript. Therefore, the Statement of Facts is taken from that transcript.
Ricardo G. was "heading home" on a bicycle at around 9:30 p.m. on August 28, 2015. He was on the sidewalk on Covert Road near a school, about two blocks from his home. He noticed a red Honda Civic in the roadway travelling in the same direction. The vehicle and one of its occupants were familiar to him; he identified the passenger as Fernandez, with whom he had a friend in common. Generally, Fernandez drove the Civic, but not on this occasion.
We refer to the victim and witnesses by first name and last initial to protect their privacy interests. (Cal. Rules of Court, rule 8.90(b)(1), (b)(1).) For ease of reading, we will omit the last initials in subsequent references. No disrespect is intended. --------
The Civic stopped in front of Ricardo. Fernandez got out of the passenger's side and confronted him on the sidewalk. They were about ten feet apart. Ricardo noticed that Fernandez held a 12-gauge shotgun; Fernandez looked at him and cocked the gun. Ricardo turned and ran across the street. He heard a shot and felt something strike the back of his head; he heard a second shot and was struck in the shoulder, at which point he fell to the ground. He was not sure whether there was a third shot.
Ricardo ran to the opposite side of the street before falling. He lost consciousness, then awoke bleeding. The Civic drove off slowly. Ricardo was taken to the hospital where he was treated for multiple injuries to his back from bird shot. He also suffered a fractured shoulder blade. Ricardo thought Fernandez may have shot him because of problems arising from their common friend's relationship with a girl.
Deputy Caleb Murphy of the Stanislaus County Sheriff's Department responded to the scene of the shooting. When he arrived, emergency personnel were already there. Ricardo was sitting on the sidewalk. Deputy Murphy spoke to a witness who lived nearby. The witness said he heard five or six shots that sounded as though they came from a rifle while he was in his living room watching television. He grabbed his own firearm and looked out his front window. He heard a cry for help and went outside.
Deputy Murphy saw an apparently injured person sitting on the opposite sidewalk and a bicycle in the roadway. He also saw three expended shotgun shells and one shell that had not been fired. All of the shells were Federal brand and in the eastbound lane of Covert Street.
Deputy Ruben Nuno went to the emergency room of Memorial Medical Center to interview Ricardo who was being treated for a gunshot wound. A nurse told Deputy Nuno that Ricardo's liver and kidney had been damaged. Deputy Nuno was also provided with a photograph of the back of Ricardo's head showing pellet impacts and a neck brace. The same nurse said that his injuries were not life threatening.
Detective Jesse Tovar was the lead detective investigating the shooting. He interviewed Fernandez on September 4, 2015 at about 6:20 p.m. in the departmental interview room. Fernandez was advised of his rights and agreed to speak. He denied being at the scene of the shooting and denied knowing Ricardo. He believed he might have been at home or with friends. He was familiar with Salida, where the shooting occurred, because he "hung out" with his friends Matthew H. and Jason J. there. Fernandez moved to Modesto about a year and a half before the shooting. He admitted frequenting Salida Park, which was two blocks from the crime scene. He also admitted owning a red Honda he had sold a few days before the interview, but denied lending the vehicle to anyone on the date of the shooting.
Fernandez admitted belonging to a gang, the Salida Mob. He lived about ten minutes away from where the shooting occurred. When deputies searched his home, they found a shotgun and Federal brand shells. They found "gang indicia" in Fernandez's bedroom. Fernandez's mother said that the firearms in the house were normally kept locked up and that only she and her husband had the key.
Defense
Another witness was in her driveway on Covert Road at the time of the shooting. She was looking around for a stray dog she usually fed when she saw a man riding a bicycle on the sidewalk. The cyclist moved out on the road in front of a car. Two men got out of the car, walked up to him, and began talking to him. She thought the car was light-colored or white. She resumed looking for the dog. Then, she heard a gunshot. The cyclist dropped the bicycle and took two or three steps toward the sidewalk. There was a second shot. The cyclist reached the opposite sidewalk and fell. She could not see the person who got out of the car. She retreated to her house and called the police. Her husband helped Ricardo while a neighbor secured the bicycle.
Laverne M. remembered that Fernandez, her son George, and two young men named Jason and Matthew were in her house playing video games and drinking on the night in question. At about 8:00 p.m., she came out of her bedroom and told her son not to go anywhere because they had been drinking. She returned to her room but came out periodically to use the bathroom. The boys continued to play the video game. When she awoke in the morning, they were there lying on the couches. They were asleep but the game was still on. She believed they had remained in the house playing the video game all night.
Laverne's son George had been friends with Fernandez since elementary school. On the evening in question, George invited his friends Matthew, Jason and Fernandez to his house to drink beer and smoke weed. They also were going to play a video game. Fernandez arrived first, between 6:30 and 7:00 p.m.; the others came roughly a half hour later. Fernandez drove there in his red Honda which he parked in front of their house. At some point George's mother came in and told them not to let Fernandez go anywhere because he was drunk.
After a couple of hours, they turned off the game and played music. George's mother was in and out of the room. George decided to go to sleep in his room. Before he left the living room at about 10:30 p.m., Fernandez fell asleep on the couch. Matthew left with Jason because he had to go to work. George got up at around 12:30 a.m. and noticed Fernandez was still there.
Jason confirmed that he was at George's home on the evening in question playing video games and drinking. When he arrived at 7:00 p.m., Fernandez and George were already there, as was George's mother. They all remained at the house until 11:00 p.m. Jason stopped drinking at 9:00 p.m. and left at 11:00 p.m. with Matthew. When they left, Fernandez was already sleeping. Fernandez was in George's house the entire time that Jason was there that evening.
For a brief period before they went to George's house, the entire group was in Salida Park. Jason, Matthew, George and Fernandez remained in the park briefly, then they all went to George's house. Fernandez drove the red Honda to George's house. Jason and Matthew stopped to buy beer. Jason did not know Ricardo.
APPELLATE COURT REVIEW
Fernandez's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating Fernandez was advised he could file his own brief with this court. By letter on July 8, 2019, we invited Fernandez to submit additional briefing. To date, he has not done so.
After independently reviewing the entire record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.