Opinion
H036675
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. JOEL GONZALES, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CC772742
Defendant Joel Gonzales, Jr. appeals from his resentencing on remand from our unpublished opinion in People v. Gonzales. We have taken judicial notice of this court's unpublished opinion in H034436, and incorporate it by reference.
Defendant's counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende was being requested. Counsel has furnished only the reporter's transcript and clerk's transcript of the sentencing hearing for our review.
On May 25, 2011, we notified defendant of his right to submit written argument on his own behalf within 30 days.
Initially, in this case we issued an order to show cause as to why this appeal should not be dismissed as abandoned. The independent judicial review mandated by Anders v. California, supra, 386 U.S. 738 applies only to a defendant's first appeal as of right. (Pennsylvania v. Finley (1987) 481 U.S. 551, 557; In re Sade C. (1996) 13 Cal.4th 952, 972-974.) Although at first glance this does appear to be defendant's second appeal, we are persuaded that technically this is still part of his first appeal and since we have not had the opportunity to review defendant's new sentence for error, we will conduct Wende/Anders review.
Defendant filed a supplemental letter brief in which he raises no issues, but asks for an extension of time to "gather missing records, documents and evidence"; we denied defendant's request for an extension of time. In his letter, defendant seeks records that were used to "determine the judgment," and that concerned his "state of mind." Any issues arising from these documents are beyond the scope of this Wende review. Absent a showing of justification for the delay, a defendant may not use the occasion of remand to raise any issues in this continuing appeal that could have been raised earlier. (People v. Senior (1995) 33 Cal.App.4th 531, 535-538.) Accordingly, we review only the sentence imposed for error.
Pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, we have reviewed the entire record and have concluded that there are no arguable issues. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 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.)
Facts and Proceedings Below
Defendant was charged with five counts of making criminal threats (Pen. Code, § 422), one count of residential burglary (Pen. Code, §§ 459, 460, subd. (a)); and one count of being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). It was alleged that he had sustained two "strike" priors.
The parties agreed to try the case to the court based upon documentary materials and testimony. All of the charges arose from a drunken rampage on July 16, 2007, in which defendant, while armed with a .25 caliber handgun, menaced his girlfriend Leticia Salazar, her sister-in-law Cristina Avila, Leticia's teenage daughter Justine Valdez, and two of their neighbors. Viewed most favorably to the judgment, the evidence showed that the rampage originated when defendant came home very drunk to find Ms. Salazar, Ms. Valdez, and Ms. Avila watching television. He began yelling at Ms. Salazar, not making any sense. At some point, he drew a small silvery gun from his pocket. Ms. Salazar picked up Ms. Valdez, who needed help to walk, and all three women left the house. Defendant chased them into the street. As Ms. Salazar stood with Ms. Valdez in her arms, defendant pointed the gun at her and said that if he heard cops coming he would shoot her. He also threatened to shoot Ms. Avila. According to her, the threat— addressed to her and Ms. Salazar—was unconditional: "I'm going to shoot you and her." At the sound of approaching sirens, defendant fled.
Defendant was convicted on all counts. After striking one of the prior conviction allegations, the court sentenced defendant to state prison for a total term of 25 years.
On appeal, this court found that there was insufficient evidence as a matter of law as to one count of making criminal threats—count six. Accordingly, we reversed defendant's conviction and remanded the matter to the trial court with directions to enter a judgment of acquittal on count six and to resentence defendant on the remaining counts. Further, we directed the court to modify the judgment to reduce by $20 the court security fee imposed under Penal Code section 1465.8.
On February 7, 2011, the trial court resentenced defendant. The court set aside the finding of guilt on count six and sentenced defendant to 22 years four months in state prison consisting of seven years for count one (Pen. Code, § 459) — the lower term of two years doubled to four years plus a consecutive term of three years for a Penal Code section 12022.5 enhancement; seven years on counts two and three (Pen. Code, § 422) again, the midterm of two years doubled to four years plus 12022.5 enhancements (the court stayed the punishment of counts two and three pursuant to Penal Code section 654); 32 month consecutive terms (one third the mid-term or 16 months plus 16 months for Penal Code section 12022.5 enhancements) for counts four and five; a concurrent term of four years on count seven (Pen. Code, § 12021, subd. (a)(1)); and two consecutive five year terms for defendant's two prior serious felony convictions (Pen. Code, § 667, subd. (a)).
Due to defendant's prior strike conviction the court doubled the term on each count. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)
As to counts four and five the court found that they were separate incidents, committed at separate points in time, from counts one, two and three involving different victims and therefore the court decided to run the terms consecutively.
It appears that defendant entered a neighbor's house, where he threatened the neighbor with the gun, saying "You want this[?]" He noticed the neighbor's daughter using the phone, and pointed the gun at her, saying, "You don't want me to do this?" Eventually, defendant left that house and returned to the street, where he made the threats on which counts one, two and three were based.
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The court imposed a court security fee of $120 (Pen. Code, § 1465.8), and a restitution fund fine of only $200 (Pen. Code, § 1202.4). The court found that there were "compelling and extraordinary circumstances" of defendant's inability to pay. Further, the court awarded defendant 1312 actual days of custody credit, but only 107 days of conduct credits pursuant to Penal Code section 2933.1 and People v. Buckhalter (2001) 26 Cal.4th 20, 23-37.
Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. The sentencing choices made by the trial court were consistent with applicable law and were well within the discretion of the trial court. At all times, defendant was represented by competent counsel.
Disposition
The judgment is affirmed.
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ELIA, J.
WE CONCUR:
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RUSHING, P. J.
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PREMO, J.