Opinion
E070151
10-09-2018
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL LUEVANO, Defendant and Appellant.
Ismael Luevano, in pro. per.; and David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1600369) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed. Ismael Luevano, in pro. per.; and David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Ismael Luevano is an identified gang member. In one incident, defendant stabbed the victim because the victim stopped being involved in gang activity. Approximately two weeks later, during an officer pursuit, defendant stuck his body out of a vehicle and fired a shotgun at the officer. Following several requests to represent himself and requests to appoint counsel, defendant eventually pled no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 2) and assault with a firearm upon a peace officer or firefighter (§ 245, subd. (d)(1); count 4). Defendant also admitted that in the commission of count 4, he personally and intentionally discharged a firearm, to wit, a shotgun, within the meaning of section 12022.53, subdivision (c). In return, the remaining charges and enhancement allegations were dismissed, and defendant was sentenced to a total term of 26 years in state prison with 1,079 days of credit for time served. Defendant appeals from the judgment. Based on our independent review of the record, we find no error and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the probation report and preliminary hearing transcript. --------
A. Stabbing Incident
On January 16, 2016, Montclair Police Department officers responded to a residence in the City of Montclair regarding a possible stabbing victim. Upon arrival to the location, officers located the victim. The victim informed the officers that he had been stabbed by "Rowdy," later identified as defendant, and "Silent," later identified as George Gonzalez. The victim was transported to the hospital. The victim's treating doctor informed the officers that the victim had been stabbed approximately nine times with a sharp, small object, possibly a screwdriver or ice pick. The victim's injuries were serious but not life threatening.
The victim informed the officers that two gang members had assaulted him because he stopped being involved in gang activity. The victim also stated that he had received a call from defendant right before the assault. The victim allowed the officers to search his phone. The officers saw that defendant had called the victim three times and had sent the victim one text message on the day of the incident. The victim positively identified defendant in a photo lineup as the individual who had stabbed him.
The victim later advised the officers that he had been a Tortilla Flats gang member, which associated with the Cuatro Flats gang, and that he had sold drugs. The victim also asserted that he would pay a tax to the Mexican Mafia and to the 12 Street Sharkies. The victim told the gang that he no longer wanted to be involved in the gang. The victim also informed the officers that defendant was a Cuatro Flats gang member and that Gonzalez was a 12 Street Sharkies gang member. The 12 Street Sharkies also associated with the Cuatro Flats gang. The victim believed that defendant stabbed him to become a soldier for the Mexican Mafia.
A gang investigator investigating the stabbing learned that defendant had been arrested in Riverside County and interviewed defendant. Defendant initially denied being in the Cuatro Flats gang and going by the moniker "Rowdy," but later admitted to both. Defendant also admitted to stabbing the victim with an ice pick in front of his aunt's or uncle's house, but denied being ordered to commit the stabbing. Defendant claimed that he had stabbed the victim after an argument ensued over the victim owing him $600. Defendant also asserted that the victim went to a vehicle to retrieve a firearm, and explained that " 'It was either him or me.' "
In the gang investigator's opinion, however, defendant, a member of the Cuatro Flats gang, stabbed the victim because the victim had refused to smuggle drugs into jail for the Mexican Mafia. The gang investigator also concluded that defendant acted at the direction of a known Mexican Mafia associate to commit a violent act in hopes of becoming a "Sureño," a person validated as being good with the Mexican Mafia and "putting in work."
B. Assault with a Firearm on a Peace Officer Incident
On January 28, 2018, at around 12:40 a.m., a San Bernardino County Sheriff's Department sergeant observed a vehicle driven by a female with a male passenger traveling at a high rate of speed and running a stop sign. The sergeant activated his lights to initiate a traffic stop. However, the vehicle drove away. As the sergeant was pursuing the vehicle, defendant stuck his body out of the vehicle and fired a shotgun at the sergeant. Neither the sergeant nor his patrol unit were hit. The sergeant called for backup units, however, the vehicle evaded the officers.
Through surveillance video and additional investigation, law enforcement determined defendant's vehicle was the one used in the commission of the assault on the sergeant. During an interview with defendant, defendant admitted to shooting at the officer. Defendant stated that he had stuck his body out of the car window and shot at the cop with a 12-gauge shotgun. He explained that he shot at the officer because he knew he was wanted for attempted murder and did not want to go to jail. Defendant also asserted that he drove somewhere near the Mexican border and disposed of the shotgun.
C. Procedural Background
Following a preliminary hearing, on May 11, 2016, a first amended information was filed alleging that defendant committed attempted murder (§§ 664/187, subd. (a); count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2); attempted murder of a peace officer (§ 664/187, subd. (a); count 3); assault with a firearm upon a peace officer (§ 245, subd. (d)(1); count 4); and shooting at an occupied motor vehicle (§ 246; count 5). The information also alleged that in the commission of counts 1 and 2, defendant inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a), and that defendant committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C). The information further alleged that in the commission of counts 3 and 4, defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1) and that defendant personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1). As to count 4, the information alleged that defendant used a firearm within the meaning of section 12022.53, subdivision (b), and section 12022.5, subdivisions (a) and (d). As to count 5, the information also alleged that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a).
On July 15, 2016, the trial court granted defendant's request to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta).
On March 3, 2017, the court granted defendant's request for an appointed counsel.
On July 7, 2017, defendant made a motion to relieve his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Following a closed hearing, the court denied defendant's Marsden motion.
On July 28, 2017, the trial court granted defendant's motion to set aside the gang enhancement allegations in counts 1 and 2 under section 995.
On September 15, 2017, defendant made another motion to represent himself pursuant to Faretta. After defendant signed a Faretta waiver form and following an inquiry by the trial court, the court again permitted defendant to represent himself.
On January 3, 2018, defendant requested counsel to represent him. The court granted defendant's request and again appointed a counsel to represent him. At that time, the court advised defendant that any future self-representation requests would likely be denied by the court.
On January 26, 2018, pursuant to a negotiated plea agreement, defendant pled no contest to count 2, assault with a deadly weapon, and count 4, assault on a peace officer with a firearm. In addition, defendant admitted that in the commission of count 4, he had personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). In exchange, defendant was promised that the remaining allegations would be dismissed and that he would be sentenced to a stipulated term of 26 years in state prison (the middle term of six years on count 4, plus 20 years for the firearm use enhancement, and a concurrent upper term of four years on count 2). After directly examining defendant, the trial court found that defendant understood the nature of the charges and the consequences of the plea and admission and that the plea and admission were entered into voluntarily, knowingly, and intelligently. The court also found that there was a factual basis for defendant's plea and admission.
On February 27, 2018, the trial court sentenced defendant to 26 years in state prison in accordance with his plea agreement. Defendant was awarded 1,079 days of credit for time served (938 actual days plus 141 conduct credits). The remaining charges and enhancement allegations were dismissed.
On March 14, 2018, defendant filed a notice of appeal based on the sentence or other matters occurring after the plea. On April 27, 2018, defendant filed an amended notice of appeal challenging the sentence and the validity of the plea and admission. Defendant also filed a request for certificate of probable cause. Defendant's request for a certificate of probable cause was granted on May 9, 2008.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and any potential arguable issues, and a request that this court conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his one-page letter brief, which does not include any citations to authorities, defendant appears to argue that the trial court erred in failing to give him a copy of the reporter's transcript of his Marsden hearing and that the court erred in sentencing him to 20 years on the firearm use enhancement allegation. Defendant's contentions are without merit.
In his first assignment of error, defendant asserts the court denied "my motion to request my Marsden hearing transcripts" and stated he could "only retrieve those transcripts by the courts of appeal." He further states "But without the transcripts of (December 1, 2017) I cannot point it out in paper. I will plead my case once again, to this court, to find a remedy for this issue." We have reviewed the Marsden hearing transcripts, the letter submitted by defendant to the court, as well as the entire record, and find no error.
In his second claim of error, defendant believes the court erred in sentencing him to 20 years on the firearm use enhancement allegation pursuant to section 12022.53, subdivision (c). Initially, we note defendant agreed to be sentenced to 20 years for personally and intentionally discharging a firearm in violation of section 12022.53, subdivision (c), as part of his negotiated disposition. As such, defendant's claim is unmeritorious.
In any event, the court properly imposed a 20-year sentence for violating section 12022.53, subdivision (c). "A sentence enhancement is 'an additional term of imprisonment added to the base term.' " (People v. Jefferson (1999) 21 Cal.4th 86, 101.) "The legislative intent behind section 12022.53 is clear: 'The Legislature finds and declares that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and to deter violent crime.' " (People v. Garcia (2002) 28 Cal.4th 1166, 1172.) Section 12022.53, subdivision (a), specifies the felonies to which the statute applies, and then the statute sets out three sentence enhancements for personal use or discharge of a firearm in the commission of those felonies: Subdivision (b) provides a 10-year enhancement for using a firearm; subdivision (c) a 20-year enhancement for intentionally firing the gun; and subdivision (d) a 25-year-to-life enhancement for intentional discharge causing great bodily injury or death to someone other than an accomplice. (§ 12022.53, subds. (b), (c) & (d).) Each subdivision declares that its enhancements "shall" be applied "[n]otwithstanding any other provision of law " and as "an additional and consecutive term of imprisonment." (§ 12022.53, subds. (b), (c) & (d), italics added; People v. Shabazz (2006) 38 Cal.4th 55, 68.) Defendant's conviction for assault with a firearm on a peace officer is a qualifying felony. (§ 12022.53, subd. (a)(7).) As part of his plea agreement, defendant admitted that in the commission of committing the assault with a firearm on a peace officer, he personally and intentionally discharged a firearm in violation of section 12022.53, subdivision (c). Accordingly, the trial court correctly imposed an additional consecutive term of 20 years for the personal and intentional discharge of a firearm on a peace officer in violation of section 12022.53, subdivision (c).
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.