Opinion
H046893
10-30-2019
THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN ANDRUE PADILLA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18CR006269)
Appellant Christian Andrue Padilla participated in the armed robbery of an ARCO gas station in Prunedale on February 24, 2018, with another person. Over $14,000 in cash was taken from the gas station. During the course of the robbery, one of the perpetrators pointed a gun at and threatened three people working there. The men who had committed the robbery, one of whom was later identified as Padilla, left the gas station in a car that had been stolen from San Jose. Location information taken from Padilla's cell phone tied him to the theft of the car in San Jose and to the robbery in Prunedale.
These facts are taken from Padilla's probation report.
Padilla was charged by information with three counts of second degree robbery (Pen. Code, § 211; counts 1-3); assault with a deadly weapon, a firearm (§ 245, subd. (a)(1); count 4); and assault with a deadly weapon, a handgun (§ 245, subd. (a)(1); count 5). Counts 1, 2, and 3 included allegations that Padilla had served a prior prison term (§ 667.5, subd. (b)) and committed the offense while armed with a firearm (§ 12022, subd. (a)(1).) Counts 4 and 5 also included the allegations that Padilla had served a prior prison term (§ 667.5, subd. (b)). The District Attorney later amended the information against Padilla to add Count 6, a felony violation of Vehicle Code section 10851, subdivision (a).
Unspecified statutory references are to the Penal Code.
On January 22, 2019, Padilla pleaded no contest to counts 1 and 6 and admitted the section 12022, subdivision (a)(1), enhancement attached to Count 1. The trial court advised Padilla that his maximum sentence was six years and eight months in state prison. Other than dismissal of the remaining counts at sentencing, there were no conditions attached to Padilla's plea agreement. Padilla signed a written plea agreement that included a number of waivers, including a waiver of "all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal [the] conviction, the judgment, and any other orders previously issued by this court."
Although Padilla also simultaneously pleaded no contest to a misdemeanor charge of spousal battery, in violation of section 243, subdivision (e)(1), in another case (18CR009244), Padilla does not here appeal that conviction.
Padilla's counsel filed in the trial court a statement in mitigation requesting that the trial court either sentence Padilla to the upper term of six years and eight months but suspend the execution of the sentence "for whatever term the Court sees fit" or sentence him to a prison term of three years and eight months. Padilla's counsel noted that, although Padilla had been placed on probation as a juvenile, he had never been granted formal probation as an adult. Padilla's counsel asserted that Padilla was "in a different position today" in that he had a long-term partner, children with special needs that depended upon him, and support in the community. The statement in mitigation attached photographs of Padilla and his family, Padilla's educational records, and several letters from Padilla's family and supporters who attested to Padilla's positive prospects. The district attorney filed a sentencing memorandum requesting that the trial court sentence Padilla to six years in prison.
At sentencing on April 25, 2019, the trial court indicated that it had read and considered the probation report and the parties' sentencing memoranda, including Padilla's statement in mitigation, and it had received into evidence and watched the video of the robbery provided to the court by the parties. The trial court made findings with respect to a variety of factors in aggravation and mitigation and noted Padilla's history of prior convictions and poor performance on probation. The trial court concluded that the factors in aggravation outweighed the factors in mitigation. The trial court also found that the crimes and their objectives were predominantly independent of one another and were committed at different times or in separate places.
The trial court denied probation and sentenced Padilla to the upper term of five years on count 1 and imposed a one year consecutive term for the section 12022, subdivision (a)(1) enhancement. On count 6, the trial court imposed the middle term of two years in prison to be served concurrently with count 1. The trial court awarded 310 days of credit for actual custody time and 46 days of good time/work time credits, for total credits of 356 days. The trial court also imposed a restitution fine of $3,600 (§ 1202.4, subd. (b)); a local crime prevention fine of $10 (§ 1202.5) and penalty assessments for a total of $41; a court operations assessment of $80 (§ 1465.8, subd. (a)(1)); a court facilities assessment of $60 (Gov. Code, § 70373); an emergency medical air transportation fee of $4 (Gov. Code, § 76000.10); victim restitution to ARCO in the amount of $24,3 00; and victim restitution to Jane Does 1, 2, and 3 (the ARCO employees threatened during the robbery) and to the California Victim Compensation and Government Claims Board in amounts to be determined later (§ 1202.4, subd. (f)). Defense counsel neither objected at sentencing to any of the fines and fees imposed by the trial court nor requested a hearing on Padilla's ability to pay them. The trial court dismissed the remaining counts and allegations in the interests of justice, including the allegations that Padilla had served a prior prison term. (§ 1385.)
The parties agreed that the probation report contained an error when it stated that the plea agreement stipulated that Padilla would receive a probation sentence. The parties and the court characterized Padilla's plea as an "open plea."
The trial court's minute order for the sentencing hearing and the abstract of judgment incorrectly state that the trial court ordered restitution to ARCO in the amount of $24,398. The transcript of the sentencing hearing indicates that the trial court ordered restitution to ARCO in the amount of $24,300. We may order correction of an abstract of judgment that does not accurately reflect the oral judgment of the sentencing court (People v. Mitchell (2001) 26 Cal.4th 181, 185) and therefore order the abstract of judgment corrected.
The record on appeal does not indicate whether this restitution was subsequently ordered by the trial court. --------
Padilla did not request from the trial court a certificate of probable cause and filed a notice of appeal "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b).)"
We appointed counsel to represent Padilla on appeal. Appellate counsel filed an opening brief stating the case and the facts but raising no specific legal issues. Counsel has declared that he notified Padilla both of his intention to request independent review under People v. Wende (1979) 25 Cal.3d 436 (Wende) and of his right to file written argument on his own behalf. We notified Padilla of his right to submit written argument on his own behalf but have received no response from him.
We have reviewed the record under Wende, supra, 25 Cal.3d at p. 436 and People v. Kelly (2006) 40 Cal.4th 106. Concluding there is no arguable issue on appeal, we affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
The felony abstract of judgment dated May 20, 2019, is ordered corrected in section 9(b) ("Restitution") and section 13 ("Other orders") to state that restitution was ordered to ARCO in the amount of $24,300. The clerk of the superior court is ordered to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
DANNER, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
GROVER, J.