P. v. Marquez

Filed 8/10/07 P. v. Marquez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.

A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Nick Marquez appeals from a judgment entered following his no contest plea to carjacking, count 1 (Pen. Code,  215, subd. (a)), assault with a semi-automatic firearm, count 7 (Pen. Code,  245, subd. (b)), his admission that he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code,  1170.12, subds. (a) (d) and 667, subds. (b)- (i)) and his admission that he used a firearm within the meaning of Penal Code sections 12022.53, subdivision (b) and 12022.5, subdivision (a). He was sentenced to prison for a total of 28 years composed of the upper term of nine years for count 1, doubled pursuant to the Three Strikes law plus 10 years for the gun use enhancement pursuant to Penal Code section 12022.53, subdivision (b). For count 7, he was sentenced to a concurrent term. He requested but was denied a certificate of probable cause.[1]

FACTUAL AND PROCEDURAL SUMMARY

Previously, in an opinion filed May 10, 2005, based on the trial courts failure to heed appellants request to substitute counsel, this Court reversed appellants convictions in case number KA060168 for carjacking (Pen. Code,  215, subd. (a)), evading a police officer (Veh. Code,  2800.2, subd. (a)), certain firearm enhancements and certain findings regarding prior felony convictions.[2]

On January 6, 2006, the prosecution filed an information in case number KA072795 alleging a charge of attempted murder (Pen. Code,  664/187, subd. (a)) and shooting at an inhabited dwelling (Pen. Code,  246).

On January 26, 2006, the prosecution filed a motion for joinder of the counts in case number KA072795 and case number KA060168 into the case bearing the lower case number.

On February 27, 2006, appellant filed a motion to dismiss case number KA072795 based on vindictive prosecution.

On May 23, 2006, an in camera hearing pursuant to Pitchess v. SuperiorCourt (1974) 11 Cal.3d 531 was conducted. The court found one relevant complaint and the complainants name, address and telephone number was ordered released to appellants counsel.

On August 7, 2006, the prosecutions motion for joinder of offenses was granted and appellants motion to dismiss for vindictive prosecution was denied.[3] On that same date, appellant changed his plea with the understanding he would be sentenced to prison for a total of 28 years.

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On May 2, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.

We have examined the entire record and are satisfied that no arguable issues exist. Having failed to obtain a certificate of probable cause, appellant is limited in the challenges he may make on appeal. (See Penal Code section 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 74-75; People v. Manriquez (1993) 18 Cal.App.4th 1167, 1171.) Appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J.

WILLHITE, J.

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[1] In his request for certificate of probable cause he stated he pled no contest because he was told by the court that he could appeal the denial of his motion to dismiss based on vindictive prosecution and the consolidation of the two cases. He requested that he be allowed to withdraw his plea.

[2] The evidence at trial established that on January 7, 2003, Sherry Johnson was seated in her parked vehicle waiting to pick up her stepson from elementary school when appellant pointed a handgun at her, told her to get out of the vehicle and to leave her purse and keys in the car. She complied, and appellant drove off in her car. Deputy sheriffs heard about the carjacking, and after spotting the vehicle and pursuing it with their patrol vehicles emergency lights and siren activated, arrested appellant after he crashed the stolen vehicle. According to the preliminary hearing, while appellant was driving around in the stolen vehicle, he shot at someone standing on the porch of a residence, whom he believed to be responsible for his brothers death.

There were four original counts in the information. A charge of attempted murder was dropped just before trial and the jury was unable to reach a verdict on the count of shooting at an inhabited dwelling, which was subsequently dismissed.

[3] The prosecution argued the victim of the attempted murder, who could not be found for the first trial, was presently in state prison and the prosecution was then able to proceed on that count. In finding no vindictive prosecution, the trial court found there was an objective change in circumstances in the prosecutions ability to present evidence.