P. v. Calvillo

Filed 1/19/10 P. v. Calvillo CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Simon Calvillo, Jr. was convicted of one count of assault with a deadly weapon and one count of participation in a criminal street gang after pleading no contest to those charges and admitting that he caused great bodily injury in the commission of the assault. He was sentenced to seven years and eight months of imprisonment. Defendants attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting our independent review of the record. Defendant was informed of his right to file a supplemental brief, but has not done so. We find no arguable issue and shall affirm.

Background

The following evidence was presented at the preliminary hearing. The victim, Mario Perez, testified that on August 2, 2008, he and his brother and three friends were outside Perezs house when defendant approached the men. Perez had seen defendant before and knew his name. They argued and defendant left. Defendant returned later that night accompanied by six or eight other people. They all ran towards Perez. Defendant said to the others, Get him. Perez ran towards his apartment but stopped to pick up a stick, with which he hit defendant on his arm. One of defendants friends then hit Perez on the head with a baseball bat. When Perez fell to the ground, the other man continued to hit him and defendant said, Shank him. Shank him. Perez saw that defendant had a black knife with a blade approximately five inches long. Defendant stabbed Perez twice on his left hand and once in his left leg.

Deputy Brian Keen was designated as an expert in criminal street gangs and the identification of gang members. On August 7, he spoke with defendant. Keen opined that defendant was a member of the Norteo gang based on his self-admission as a Norteo gang member, his gang-specific tattoos, his arrests with known Norteo gang members participating in criminal activity, and his actions that night. Keen described defendant as having one dot tattooed on one hand and four on the other hand, which Keen recognized as a symbol of the number 14, which is symbolic of the Norteo street gang, [N] being the 14th letter of the alphabet.

Keen believed that the stabbing was committed for the benefit of the Norteo street gang because, in the prior altercation, the verbal altercation that took place prior to the stabbing, the victim tells defendant Calvillo . . . Youre a bitch for trying to jump me last week. And this was done in front of the victim and I believe three of his friends that were there. Respect is a huge element in the Norteo street gang, or any criminal street gang, for that matter. For him to let that slide, hes . . . going to be viewed as a weaker gang member, which . . . can result in a couple things: Him being punished by his own gang, and two, him being viewed as a weaker gang member. So if he lets that go, those Sureo gang members are going to talk about this Simon Calvillo got called a bitch and he didnt do anything about it. So retaliation is necessary to promote and further the reputation of that gang. Keen also deemed it significant that defendant returned with more people. [I]t shows, one, hey, Im not going to let you get away with this, and two, look at my gang. This is what happens when you disrespect a member of my gang.

Defendant was charged by information with one count of assault with a deadly weapon (Pen. Code,  245, subd. (a)(1))[1] with allegations that the crime was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C), and that defendant inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The information also alleged one count of participation in a criminal street gang ( 186.22, subd. (a).)

The trial court denied defendants motion to set aside the information and defendant pled no contest to both counts and admitted the gang allegation and the great bodily injury allegation in count one. Defendant subsequently moved to withdraw his plea and that motion was denied. The court sentenced defendant to the upper term of four years for assault with a deadly weapon and a consecutive three years for the great bodily injury enhancement, staying imposition of sentence for the gang enhancement. The court also imposed a consecutive eight-month term, or one-third the midterm, on the second count, for an aggregate sentence of seven years and eight months. Defendant was ordered to pay $666.05 in restitution to the victim, and given credit for 353 days. He timely appealed.

Discussion

Rule 8.304(b) of the California Rules of Court provides that a defendant may not appeal after a plea of guilty or no contest unless he first obtains a certificate of probable cause. This requirement does not apply if the appeal is based on the denial of a motion to suppress evidence or [g]rounds that arose after entry of the plea and do not affect the pleas validity. (Cal. Rules of Court, rule 8.304(b)(4)(A) & (B).) Defendants notice of appeal specifies that the appeal is based on the sentence or other matters occurring after the plea. However, defendant also checked boxes indicating his appeal also challenged the validity of the plea and the trial courts denial of his motion to set aside the information. Defendant submitted a request for a certificate of probable cause, stating that his appeal is based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings resulting in the plea. However, the trial court denied defendants request for a certificate of probable cause. Therefore, since defendant made no motion to suppress evidence, the appeal is necessarily limited to events occurring after the plea was entered; in this case, imposition of sentence.

This court may not review the denial of defendants motion to withdraw his plea since the trial court did not grant his request for a certificate of probable cause. In such a case, to entertain the plea validity issues on their merits risks countenancing an apparently deliberate attempt to bypass statutory procedures and obtain appellate review of [the certificate-requiring issue] improperly.  (People v. Jones (1995) 10 Cal.4th 1102, 1112, disapproved on other grounds in In re Chavez (2003) 30 Cal.4th 643, 656.)

At sentencing, the trial court indicated that it was imposing the upper term for the stabbing based on defendants prior criminality as a juvenile and . . . prior failure on probation. The probation report indicates that defendant was declared a ward of the court in June 2005 after sustaining petitions for his gang involvement and shooting a firearm from a vehicle. The probation report also indicated that in 2007 while still a ward of the court, defendant sustained a misdemeanor petition for driving without a license and that the conditions of his prior wardship were modified because he was associating with a known gang member.

Under section 1170, subdivision (b) the trial court has broad discretion to impose the lower, middle, or upper term as best serves the interests of justice. The trial court reasonably concluded that the aggravating factors outweighed the mitigating factors in imposing the upper term. The court likewise did not err in imposing a consecutive sentence for the great bodily injury enhancement, as section 12022.7, subdivision (a) requires consecutive sentencing.

The amount of the restitution fine was based on the probation reports account that the victim had requested compensation in that amount from the Victims Compensation Board.  The standard of review of a restitution order is abuse of discretion. A victims restitution right is to be broadly and liberally construed. [Citation.]  When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.    (People v. Baker (2005) 126 Cal.App.4th 463, 467.) Given the description of the injuries sustained by the victim in the probation report, which stated that the victim was viciously stabbed multiple times causing lacerations requiring surgery and sutures, this amount was well within the trial courts discretion.

Defendant was at all times represented by competent counsel. There are no issues that require further briefing.

Disposition

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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[1] Further statutory references are to the Penal Code.