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People v. Labandera

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 10, 2012
D058939 (Cal. Ct. App. Feb. 10, 2012)

Opinion

D058939

02-10-2012

THE PEOPLE, Plaintiff and Respondent, v. CARLOS ALBERT LABANDERA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. JCF25177)

APPEAL from a judgment of the Superior Court of Imperial County, Christopher W. Yeager, Judge. Affirmed and remanded with directions.

A jury found Carlos Albert LaBandera guilty of attempted arson (Pen. Code, § 455) and making criminal threats (Pen. Code, § 422). In a bifurcated hearing, the court found true an allegation that LaBandera had suffered a strike (Pen. Code, § 667, subds. (b)-(i)). The court sentenced LaBandera to concurrent prison terms of 32 months (twice the lower term) for each offense, but the amended abstract of judgment incorrectly reflects concurrent 16-month terms. LaBandera appeals. We affirm the judgment and remand the case for correction of the abstract of judgment.

BACKGROUND

Anthony Flores (Flores) lived with his grandparents, his mother and LaBandera. LaBandera stole things from the home, so on March 23, 2010, the Flores family evicted LaBandera by putting his bags outside. When LaBandera left the house, he was very angry.

That evening, around 10:00 p.m., a neighbor knocked on the door and said Flores's grandparents' truck was on fire. Flores looked outside, saw the burning truck and summoned firefighters. Firefighters found a traffic cone burning in the truck's bed, although Flores and his family did not own a cone. One of the firefighters testified the fire appeared to have been intentionally set.

Around 11:15 or 11:20 p.m., a police officer found LaBandera on the street. LaBandera had a lighter and a small aerosol can of Lysol in his pocket. The Lysol can contained ethanol, a highly flammable substance. LaBandera told the police he had been in McDonald's for about an hour at the time of the fire, but the manager of McDonald's testified LaBandera had been there for only three to five minutes.

Around 2:15 or 2:30 a.m. on March 27, 2010, as LaBandera's brother, Armando Flores, was leaving work, he heard someone yelling at him. Armando Flores looked up, saw LaBandera and told him "to stay away and that it was messed up what he had done to [their] father's truck." LaBandera yelled, "Yes, I did it. I'll do the same to you and your fucking family." LaBandera repeated this over and over. LaBandera tried to approach Armando Flores. LaBandera's companion had to use physical force to control LaBandera. LaBandera was arrested later that morning.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel lists, as possible, but not arguable, issues: (1) whether there was sufficient evidence to support the convictions; (2) whether the court committed prejudicial error by admitting evidence of a methamphetamine pipe found near LaBandera at the time of his arrest; (3) whether the court erred by failing to instruct on mental defenses/intoxication after reversing its ruling excluding evidence of the pipe, or whether defense counsel was ineffective in not renewing his request for an instruction on this issue and by not offering expert testimony on the subject; and (4) whether the court deprived LaBandera of due process by reversing its prior exclusion ruling at the conclusion of trial.

We granted LaBandera permission to file a brief on his own behalf. He has not responded. A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues. LaBandera has been competently represented by counsel on this appeal.

DISPOSITION

The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect concurrent 32-month terms rather than concurrent 16-month terms and to forward the corrected abstract to the Department of Corrections and Rehabilitation.

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McINTYRE, J.

WE CONCUR:

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McCONNELL, P. J.

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NARES, J.


Summaries of

People v. Labandera

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 10, 2012
D058939 (Cal. Ct. App. Feb. 10, 2012)
Case details for

People v. Labandera

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CARLOS ALBERT LABANDERA…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Feb 10, 2012

Citations

D058939 (Cal. Ct. App. Feb. 10, 2012)