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People v. Mezquita

Court of Appeals California, Second District, Division Four.
Nov 4, 2003
No. B166881 (Cal. Ct. App. Nov. 4, 2003)

Opinion

B166881.

11-4-2003

THE PEOPLE, Plaintiff and Respondent, v. CARLOS MEZQUITA, Defendant and Appellant.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


Appellant Carlos Mezquita was found guilty by a jury of the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a).) Sentenced to prison for the upper term of three years and ordered, inter alia, to make restitution to the victim pursuant to Penal Code section 1202.4, subdivision (f) in the amount of $2,500, he appeals.

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

Additionally, he filed in superior court an ex parte motion to correct the abstract of judgment to reflect his conviction was "after trial by jury" rather than "by plea."

On August 12, 2003, this court advised appellant he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On August 22, 2003, appellant filed a supplemental brief in which he contends three years in prison is cruel and unusual punishment and that "county time of six months and 3 years formal probation would have been more appropriate."

At sentencing, the prosecution argued that a three-year sentence was appropriate as appellant had been on probation at least three times for theft-related misdemeanor offenses and that at the time he committed this offense he was on probation. The court stated it agreed, based on the nature of the offense in that the loss was "rather large." The court noted appellant clearly was not a viable candidate for probation, as he had sustained his misdemeanor convictions in a relatively short amount of time. The court observed, appellant is "going before judges, both in misdemeanor convictions as well as traffic convictions, and people are . . . putting him in jail, and yet he comes back and does this. So clearly probation wont work . . . ."
The probation report reflects on July 10, 2001, December 7, 2001 and December 12, 2001, appellant was convicted of misdemeanor thefts and that appellant "admits three arrests for theft-related crime [and that he] was on summary grants of probation in two of those arrests."

Given appellants prior record and the facts related to both him and his offense, the trial court did not abuse its discretion in denying probation and imposing the upper prison term. Additionally, the statutory punishment was not cruel and unusual punishment. (See California Rules of Court, rules 4.414, 4.420; People v. Martinez (1999) 76 Cal.App.4th 489, 494-498; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)

We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278.)

DISPOSITION

The judgment is affirmed.

We concur: VOGEL (C.S.), P.J. and HASTINGS, J.


Summaries of

People v. Mezquita

Court of Appeals California, Second District, Division Four.
Nov 4, 2003
No. B166881 (Cal. Ct. App. Nov. 4, 2003)
Case details for

People v. Mezquita

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CARLOS MEZQUITA, Defendant and…

Court:Court of Appeals California, Second District, Division Four.

Date published: Nov 4, 2003

Citations

No. B166881 (Cal. Ct. App. Nov. 4, 2003)