P. v. Guevara
Filed 5/7/08 P. v. Guevara CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. RUBEN GUEVARA, III, Defendant and Appellant. | F053918 (Super. Ct. No. 1209792) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Timothy W. Salter, Judge.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant Ruben Guevara, III entered into a negotiated disposition and was sentenced to an aggregate term of 19 years in prison, and has filed an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On or about the evening of May 25, 2006, Peter Casazza picked up codefendant Tara Kolody at Modesto Junior College. They had met through a telephone chat line and arranged a sexual liaison that night. After they met on campus, Kolody got into Casazzas truck and directed him to drive to a residence where she supposedly lived. When they arrived at the residence, she led Casazza in an alley gate, through the backyard, and into the house and bedroom. Appellant Guevara was waiting there with a shotgun. Appellant ordered Casazza to take off all his clothes except his socks. Appellant and Kolody went through Casazzas belongings and removed two credit cards and a bankcard. Appellant held the shotgun at Casazza, Kolody ordered him to disclose the PIN for the bankcard, and Casazza complied. Kolody took the bankcard and left the house. Appellant repeatedly told Casazza that he was going to kill him, and wrapped the shotgun muzzle with Casazzas shirt to muffle the blast. Appellant ordered Casazza into the shower and said it would be less of a mess if he shot him there. Appellant did not shoot Casazza but kept the shotgun aimed at him.
After a while, Kolody returned and was angry because she was only able to get $400 from the ATM with Casazzas bankcard. Kolody threatened to have appellant shoot Casazza if he did not disclose the credit card PINs. Kolody ordered Casazza to his knees, used duct tape to bind his hands behind his back, and kicked him in the back. Kolody ordered him to get up, punched his head, and ordered him to walk outside while appellant continued to hold the gun on him.
Appellant and Kolody took Casazza back to his truck, which had been repositioned from where he previously parked it. Appellant and Kolody discussed whether they should let him go, and appellant decided to drop him off somewhere so they could get another one. They got into the truck, Kolody drove, and appellant kept the gun aimed at Casazza. They took Casazza to Turlock Lake and left him there, still bound with duct tape, and left in his truck.
Around 1:00 a.m., the police conducted a traffic stop on Casazzas truck, and Kolody was the driver and appellant was the passenger. Appellant had cash and Casazzas insurance cards, and was wearing Casazzas watch. Kolody had cash and a three-inch double-blade knife in her purse. The police later searched the house where Casazza had been held, and found a sawed-off shotgun, a BB pellet pistol, Kolodys credit card statements and court paperwork, and ATM receipts from Casazzas account which stated the PINs were invalid.
On August 23, 2006, an information was filed in the Superior Court of Stanislaus County which charged appellant and Kolody with count I, kidnapping for the purpose of robbery (Pen. Code, 209, subd. (b)(1)), count II, kidnapping to facilitate a carjacking ( 209.5), count III, robbery ( 211), and count IV, threatening to commit a crime ( 422). Kolody was separately charged with count V, possession of a dangerous weapon, a knife ( 12020, subd. (a)). As to counts I, II, and III, it was alleged appellant personally used a firearm ( 12022.53, subd. (b)) and Kolody was armed with a firearm ( 12022, subd. (a)), and as to count IV, that appellant personally used a firearm ( 12022.5, subd. (a)). It was further alleged that appellant was not eligible for probation because he had been convicted of two or more felonies ( 1203, subd. (e)(4)). Appellant and Kolody pleaded not guilty and denied the special allegations.
On August 22, 2007, the court granted the prosecutions motion to amend the information as to both appellant and Kolody as follows: amend count I to simple kidnapping (Pen. Code, 208, subd. (a)) with an enhancement for personal use of a firearm ( 12022.53, subd. (b)), amend count III to grand theft from the person ( 487, subd. (c)), and add count VI, assault with force likely to produce great bodily injury ( 245, subd. (a)(1)).
Thereafter, appellant pleaded no contest to count I, simple kidnapping, count III, grand theft from the person, and count VI, assault with force likely to produce great bodily injury, and admitted the personal use enhancement as to count I. Appellant also admitted that he suffered two prior felony convictions pursuant to Penal Code section 1203, subdivision (e)(4), rendering him ineligible for probation. The court ordered that allegation stricken since it was going to impose a prison term as part of the negotiated disposition. Kolody also pleaded no contest to counts I, III, and VI, and admitting the arming enhancement. The court granted the prosecutions motion to dismiss the remaining charges and enhancements.
Appellant waived his right to a probation report and requested immediate sentencing. The court imposed an aggregate term of 19 years: as to count I, the upper term of eight years, with a consecutive term of 10 years for the personal use enhancement; as to count III, a concurrent term of three years; and as to count VI, a consecutive term of one year (one-third the midterm). The court imposed a restitution fine of $3,800 pursuant to Penal Code section 1202.4, subdivision (b), and a $3,800 parole revocation fine pursuant to section 1202.45 that was suspended pending successful completion of parole. Kolody received an aggregate term of eight years.[1] The court awarded appellant 454 days of actual credit and 67 days of conduct credits, for a total of 521 days.
On October 10, 2007, appellant filed a timely notice of appeal.
On December 7, 2007, appellate counsel filed an application with this court to construe the instant notice of appeal as being an appeal following a no-contest plea and relating to sentencing or other post-plea matters. On December 18, 2007, this court granted the application and deemed the appeal to be operative based solely on grounds occurring after entry of the plea.
Also on December 7, 2007, appellate counsel filed an ex parte motion in superior court to correct the presentence custody credits. On December 21, 2007, the court granted the motion and awarded 454 days of actual credit and 68 days of conduct credits, for a total of 522 days. On January 11, 2008, the court issued an amended abstract of judgment.
DISCUSSION
Appellants appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) By letter of February 15, 2008, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so.
After independent review of the record, we have concluded no reasonably arguable legal or factual arguments exist.
DISPOSITION
The judgment is affirmed.
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* Before Harris, Acting P.J., Cornell, J. and Kane, J.
