P. v. Garcia
Filed 7/14/06 P. v. Garcia CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. ARNOLD GARCIA, JR., Defendant and Appellant. |
F048149
(Super. Ct. No. F03600561-5)
O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Pursuant to a plea agreement, appellant Arnold Garcia, Jr., pled guilty to one count of attempted second degree robbery (Pen. Code, §§ 211; 212.5, subd. (c); 664; count 3)[1] and two counts of assault with a firearm (§ 245, subd. (a)(2); counts 5, 6), and admitted allegations that in committing the assaults, he personally used a firearm (§ 12022.5, subd. (a)(1)) and that in committing the count 5 assault, he personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court struck the great bodily injury enhancement and imposed a prison sentence of 13 years, consisting of the three-year midterm on count 5 and the ten-year upper term on the accompanying firearm use enhancement. On the count 6 offense and accompanying enhancement, the court imposed a concurrent 13-year term, calculated the same way. On count 3 the court imposed a concurrent two-year term. The court also ordered appellant to pay, inter alia, a $20 court security fee (§ 1465.8).
On appeal, appellant contends (1) the imposition of the upper term on each of the firearm use enhancements constituted an unauthorized sentence; (2) the imposition of a concurrent term on count 3 violated section 654; and (3) the imposition of the court security fee violated the constitutional prohibition against ex post facto laws and statutory principles disfavoring retroactive application of statutes. We will affirm.
FACTS
On the night of April 7, 2003, appellant approached Nicholas Reynosa and Reynosa's companion and demanded money. Reynosa said he had no money, at which point appellant pulled a handgun out from the back of his waistband and pointed it at Reynosa and his companion, who then turned and ran. As they ran, appellant fired six shots, two of which hit Reynosa, one in the upper right arm and another in the lower left leg.
DISCUSSION
Imposition of Upper Term
The firearm use enhancement under section 12022.5, subdivision (a)(1) is punishable â€
