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People v. Pacheco

California Court of Appeals, Second District, Seventh Division
Apr 20, 2009
No. B207321 (Cal. Ct. App. Apr. 20, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA291350, Robert J. Perry, Judge.

Alan C. Stern, under appointment for the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


WOODS, J.

This case is before us for a third time. Juan Pacheco and a confederate threatened Maria Tzintzun and Carlos Bermejo with harm and demanded money from them at gun point. A jury convicted Pacheco on two counts of attempted second degree robbery (Pen. Code, §§ 211, 664), and two counts of attempted extortion (§§ 518, 664), with findings the offenses were committed for the benefit of, at the direction of or in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)).

Statutory references are to the Penal Code.

Pacheco was sentenced to an aggregate state prison term of eight years, eight months: The upper term of three years on count 1 for the attempted second degree robbery of Tzintzun plus five years for the criminal street gang enhancement, plus eight months on count 2 (one-third the middle term of two years) for the attempted second degree robbery of Bermejo (§§ 213, subd. (2)(b), 18). Sentences were stayed pursuant to section 654 on counts 3 and 4 for the attempted extortion of the same victims.

In his initial appeal, Pacheco contended he was sentenced in violation of his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). We agreed with Pacheco and imposed a midterm sentence instead of the upper term on one count for a reduction of one year in his aggregate sentence. The California Supreme Court then transferred this matter back to this court with directions to vacate our prior decision and to reconsider the cause in light of the decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We remanded for resentencing.

On remand, the trial court resentenced Pacheco to the same aggregate state prison term of eight years eight months and awarded 1165 days of presentence credit (1023 actual days and 142 days of conduct credit). The trial court also imposed a $500 restitution fine (§1202.4, subd. (b)) and imposed and stayed a parole revocation fine (§ 1202.45).

We appointed counsel to represent Pacheco on appeal and granted his motion to augment the record on appeal to include a settled statement of the February 20, 2008 resentencing hearing.

After examination of the record counsel filed an “Opening Brief” in which no issues were raised. In his brief counsel asked us to conduct an independent review pursuant to People v. Kelly (2006) 40 Cal.4th 106 and People v. Wende (1979) 25 Cal.3d 436, 441 to determine if the record reveals any issue that might result in reversal or modification of the judgment. On February 5, 2009, we advised Pacheco he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date.

We have examined the entire record, including the settled statement, and are satisfied Pacheco’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.

We concur: PERLUSS, P. J. ZELON, J.


Summaries of

People v. Pacheco

California Court of Appeals, Second District, Seventh Division
Apr 20, 2009
No. B207321 (Cal. Ct. App. Apr. 20, 2009)
Case details for

People v. Pacheco

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JUAN PACHECO, Defendant and…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Apr 20, 2009

Citations

No. B207321 (Cal. Ct. App. Apr. 20, 2009)