Opinion
H036870
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. CESAR RODRIGUEZ GARCIA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. Nos. SS091719, SS101091)
I. INTRODUCTION
Defendant Cesar Rodriguez Garcia pleaded no contest to three counts of attempted carjacking (Pen. Code, §§ 664, 215, subd. (a)) and two counts of carjacking (§ 215, subd. (a)). He also admitted the allegation that he was personally armed with a firearm at the time he committed one of the carjackings (§ 12022.5, subd. (a)). The trial court imposed a stipulated total term of 20 years eight months in the state prison.
All statutory references hereafter are to the Penal Code unless otherwise indicated.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant timely submitted a letter that we have considered.
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. Following the California Supreme Court's direction in People v. Kelly, supra, 40 Cal.4th at page 110, 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."
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Our summary of the facts is taken from the reporter's transcripts of the preliminary hearings held on October 9, 2009, November 13, 2009, and May 7, 2010.
On July 8, 2009, shortly before 3:00 p.m., Garcia was pumping gas at a Chevron station near a Denny's restaurant when he saw a man helping a woman out of a Toyota Camry in the restaurant parking lot. Another man wearing a baseball cap and a gray shirt approached the couple in the restaurant parking lot and put his arm around the man. A struggle ensued and Garcia ran over to provide assistance to the victim. When Garcia approached, the man in the baseball cap pointed a chrome automatic handgun at him. Garcia ducked and the man ran away. Garcia then followed him across the street to the Northridge Mall and called 911.
Also on July 8, 2009, Herman Marquez was sitting in the driver's seat of his daughter's car, a GMC Envoy, at the Northridge Mall. Marquez was waiting for her while she went into a store. As Marquez was sitting alone in the car at about 3:00 p.m., a young man came from the direction of the Hometown Buffet and attempted to enter the car from a locked door on the right side.
Having failed to gain entry to the car from the right side, the young man then came around to driver's door, where the window was open about four or five inches. The young man told Marquez to get out of the car and showed him a chrome automatic pistol. Marquez was afraid, but he refused to get out of the car. The young man slapped Marquez's cheek with the back of his hand and then left, heading towards the mall.
Marquez recalled that the young man was Hispanic, had a small mustache, and was wearing a gray hooded "sweat top" and an old baseball cap. Officer Gabriel Gonzalez later reviewed a surveillance camera videotape that showed the incident had occurred as described by Marquez and that the young man ran towards the Macy's store in the mall.
Shortly after 3:00 p.m. on July 8, 2009, Officer Lek Livingston responded to a report of a carjacking at the Northridge Mall. A Ms. Benitez told him that the carjacking occurred when she and her friend Maria Lerma returned to Benitez's BMW sedan after shopping at Macy's. When they were seated in the car, an Hispanic man wearing a baseball cap and a gray sweatshirt got into the back seat, pointed a chrome-colored handgun at Benitez, and told them to " '[g]et out of the car.' " Benitez tried to grab the car keys, but the man told her to leave them. Benitez and Lerma then exited the BMW. The man got into the driver's seat and drove off with Benitez's Macy's purchases inside the car.
The BMW sedan was later recovered and returned to Benitez. The car keys and a garage door opener were missing, as were Benitez's purchases from Macy's. In the course of the police investigation, Benitez looked at a photo array and identified defendant as the person who committed the carjacking.
During the evening of July 8, 2009, Officer Kenneth Hendrickson and Sergeant Shaw of the Salinas Police Department stopped a certain vehicle at the request of City of Watsonville police, who had seen the persons in the vehicle leave a motel room that the police were surveilling. The passengers in the vehicle included defendant and his sister, Fabiola Garcia. Defendant was searched and found to be in possession of a Mickey Mouse key chain and a hypodermic needle containing a blackish-brown liquid believed to be heroin. During the search of the car, a BMW car key and a garage door opener were recovered from Fabiola Garcia's purse. She told police officers that her brother had given her those items. Benitez later identified the BMW car key and the garage door opener as her belongings.
When the motel room was searched, items were seized that Benitez identified from photographs as items that had been in her BMW sedan before it was stolen, including Rayban sunglasses, a cell phone charger, some figurines, a Walt Disney flashlight, and some baby clothing.
B. Procedural Background
The amended felony complaint filed in case No. SS981719 on July 22, 2009, charged defendant with carjacking (§ 215, subd. (a); counts 1-5), receiving stolen goods (§ 496, subd. (a); count 6), forgery (§ 475, subd. (b); count 7), sale or transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 9), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 10), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 11). As to counts 1-5, the complaint alleged that defendant had personally used a firearm in committing the carjacking offenses (§ 12022.5, subd. (a).) The complaint also alleged that defendant had served one prior prison term (§ 667.5, subd. (b)) and had a prior felony conviction that qualified as a strike within the meaning of the Three Strikes law (§ 1170.12, subd. (c)(1)).
After the preliminary hearing held on October 9, 2009, and November 13, 2009, the trial court held defendant to answer on counts 3-5, 7, and 9, and certified the misdemeanor count, count 11, to the superior court.
The information filed in case No. SS091719 on November 20, 2009, charged defendant with attempted carjacking (§§ 664, 215, subd. (a); counts 1-3), carjacking (§ 215, subd. (a); counts 4-5), receiving stolen property (§ 496, subd. (a); count 6), transportation of a controlled substance, heroin (Health & Saf. Code, § 11352, subd. (a); count 9) and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364; count 11) The information alleged that as to counts 1-5, defendant had personally used a firearm in committing the carjacking offenses (§ 12022.5, subd. (a).) The information also alleged that defendant had served one prior prison term (§ 667.5, subd. (b)) and had a prior felony conviction that qualified as a strike within the meaning of the Three Strikes law (§ 1170.12, subd. (c)(1)).
On January 19, 2010, defendant filed a section 995 motion to dismiss counts 1-3. The trial court granted the motion on February 5, 2010. Thereafter, the district attorney filed a complaint in a new case, case No. SS101091, on April 12, 2010. The allegations in the complaint concerned the events of July 8, 2009, involving defendant and charged him with attempted carjacking (§§ 664, 215, subd. (a); counts 1-3) and assault with a semiautomatic firearm (§ 245, subd. (b); counts 4-5). As to each count, the complaint alleged that defendant had personally used a firearm in committing the carjacking offenses (§ 12022.5, subd. (a)). The complaint also alleged that defendant had served one prior prison term (§ 667.5, subd. (b)) and had a prior felony conviction that qualified as a strike within the meaning of the Three Strikes law (§ 1170.12, subd. (c)(1)). A preliminary hearing in case No. SS101091 was held on May 7, 2010. At the conclusion of the hearing, the trial court held defendant to answer on all counts.
The information filed on June 14, 2010, in case No. SS101091 charged defendant with attempted carjacking (§§ 664, 215, subd. (a); counts 1-3), carjacking (§ 215, subd. (a); counts 4-5), assault with a semiautomatic firearm (§ 245, subd. (b); counts 6-7), receiving stolen property (§ 496, subd. (a); count 8), transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 9), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 10.) As to counts 1-7, the information alleged that defendant had personally used a firearm in committing the carjacking offenses (§ 12022.5, subd. (a).) The complaint also alleged that defendant had served one prior prison term (§ 667.5, subd. (b)) and had a prior felony conviction that qualified as a strike within the meaning of the Three Strikes law (§ 1170.12, subd. (c)(1)).
On October 27, 2010, defendant entered into a plea agreement in which he agreed to plead no contest to counts 1-3 (attempted carjacking) and counts 4-5 (carjacking), and admit the allegation that had personally used a firearm in committing the carjacking offense alleged in count 4, in exchange for a stipulated sentence of 20 years eight months.
Thereafter, during a motion hearing held on February 9, 2011, case No. SS091719 was dismissed on the district attorney's motion. The sentencing hearing was also held on February 9, 2011. The trial court sentenced defendant in case No. SS101091 to a total term of 20 years eight months, structured as follows: Nine years (the upper term) on count 4 (carjacking) plus 10 years pursuant to the section 12022.5, subdivision (a) sentencing enhancement for personal use of a firearm; one year 9 months (one-third the middle term) on count 5 (carjacking); and concurrent terms of two years six months (the middle term) on count 1, count 2, and count 3 (attempted carjackings). All remaining counts and special allegations were dismissed.
The court also ordered defendant to pay a $10,000 restitution fine (§ 1202.4, subd. (b)(2)), suspended the imposition of a $10,000 parole revocation restitution fine (§ 1202.45), and additionally ordered defendant to pay a court security fee of $200 (§ 1465.8, subd. (a)(1)), a court facilities assessment fee of $150 (Gov. Code, § 70373), a crime prevention fee of $10 (§ 1202.5), and victim restitution in an amount to be determined by the Department of Corrections.
Defendant filed a notice of appeal and an application for a certificate of probable cause in both cases on April 1, 2011. He filed an amended notice of appeal on April 11, 2011, stating that the appeal was based on the sentence or other matters occurring after the plea that did not affect the validity of the plea.
III. WENDE ANALYSIS
This court received a handwritten letter from defendant on November 16, 2011. We understand defendant to seek a reduction in his sentence on the ground that his trial counsel was ineffective in failing to obtain a plea agreement with a state prison term of less than 20 years eight months.
Having carefully reviewed the entire record and defendant's letter, we conclude that there are no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at
pp. 441-443.)
IV. DISPOSITION
The judgment is affirmed.
______________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
______________________
PREMO, ACTING P. J.
______________________
ELIA, J.