P. v. Garibay
Filed 2/14/07 P. v.Garibay CA5
NOT TO BEPUBLISHED IN OFFICIAL REPORTS
California Rules of Court,rule 977(a), prohibits courts and parties from citing or relying on opinionsnot certified for publication or ordered published, except as specified by rule977(b). This opinion has not been certified for publication or orderedpublished for purposes of rule 977.
IN THE COURT OFAPPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATEDISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
JESSE HERNANDEZ GARIBAY, JR.,
Defendant and Appellant.
|
F050493
(Super. Ct. No. 1100204)
O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Edward M. Lacy, Judge.
Robert L. S. Angres, under appointment by theCourt of Appeal, for Defendant and Appellant.
Bill Lockyer,Attorney General, Mary Jo Graves, Chief Assistant Attorney General, MichaelP. Farrell, Assistant Attorney General, Brian Alvarez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On March 3, 2006, appellant, Jesse Hernandez Garibay, Jr., entered pleas of no contest to three felony counts of attempted robbery (Pen.Code, §§ 664 & 211, counts one, two & three) and one felony countof participation in a criminal street gang(Pen. Code, § 186.22, subd. (a), count four).[1] Appellant admitted using a firearm (§ 12022.53, subd. (e)(1)) and acting forthe benefit of a criminal street gang (§ 186.22, subd. (b)(1)) during thecommission of counts one, two and three. Prior to taking appellant's plea, thetrial court noted that the indicated sentence would be between 12 and 17 yearsin prison.
The trial court sentenced appellant to thetwo-year midterm on each count, but made appellant's sentences on counts two,three, and four concurrent to his sentence on count one. The court imposed the10-year gun enhancement alleged on count one. The court imposed 10-year termson the gun enhancements on counts two and three, but ordered these to be servedconcurrently. The court stayed the gang enhancements on counts one, two, andthree. Appellant's total prison term is 12 years. The court awardedapplicable custody credits and imposed a restitution fine.
Appellant contends the section 12022.53,subdivision (e)(1) gun use enhancement is not predicated on his personal use ofthe gun, but his participation in a criminal street gang in which a gun wasused. Because he was sentenced on both this enhancement and count four(participation in a criminal street gang), appellant argues that the trialcourt violated section 654 in sentencing him to both allegations. Appellant,however, failed to obtain a certificate of probable cause. As we explain, theappeal must be dismissed.[2]
DISCUSSION
At pages 9 and 10 of his opening brief, appellant argues that hisfailure to obtain a certificate of probable cause should not be subject towaiver or estoppel for his failure to obtain a certificate of probable causebecause the trial court's sentence was not â€
| Description | On March 3, 2006, appellant, entered pleas of no contest to three felony counts of attempted robbery (Pen.Code, SS 664 and 211, counts one, two and three) and one felony count of participation in a criminal street gang (Pen. Code, S 186.22, subd. (a), count four). Appellant admitted using a firearm (S 12022.53, subd. (e)(1)) and acting forthe benefit of a criminal street gang (S 186.22, subd. (b)(1)) during the commission of counts one, two and three. Prior to taking appellant's plea, the trial court noted that the indicated sentence would be between 12 and 17 years in prison. The trial court sentenced appellant to the two year midterm on each count, but made appellant's sentences on counts two, three, and four concurrent to his sentence on count one. The court imposed the 10-year gun enhancement alleged on count one. The court imposed 10-year terms on the gun enhancements on counts two and three, but ordered these to be served concurrently. The court stayed the gang enhancements on counts one, two, and three. Appellant's total prison term is 12 years. The court awarded applicable custody credits and imposed a restitution fine. Appellant contends the section 12022.53,subdivision (e)(1) gun use enhancement is not predicated on his personal use of the gun, but his participation in a criminal street gang in which a gun was used. Because he was sentenced on both this enhancement and count four(participation in a criminal street gang), appellant argues that the trial court violated section 654 in sentencing him to both allegations. Appellant, however, failed to obtain a certificate of probable cause. As court explain, the appeal must be dismissed. |
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