P. v. Mendoza
Filed 10/28/08 P. v. Mendoza CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO CESAR MENDOZA, Defendant and Appellant. | E045350 (Super.Ct.No. FSB042773) OPINION |
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge. Affirmed with directions.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
I
INTRODUCTION
An information charged Alejandro Cesar Mendoza with one count of murder under Penal Code[1]section 187, one count of attempted murder under sections 664 and 187, and three counts of making a criminal threat under section 422. Pursuant to a negotiated plea agreement, defendant pled guilty to one count of voluntary manslaughter under section 192, subdivision (a), and admitted that he personally used a firearm under section 12022.5, subdivision (a).[2] Defendant was sentenced to the midterm of six years for voluntary manslaughter, plus the midterm of four years on the section 12022.5, subdivision (a) enhancement, for a total sentence of 10 years. In addition, a restitution fine under section 1202.4 and a parole revocation fine under section 1202.45 were imposed in the sum of $800 each.
At the time of the sentencing, defendant objected to the imposition of the victim restitution fine on the ground that it had not been part of the plea agreement. It was agreed that the award of victim restitution would be deferred to a later hearing. At the victim restitution hearing, the trial court ordered restitution in the requested amount of $50,746.11.
Defendant filed a timely notice of appeal.
II
PROCEDURAL BACKGROUND
Because the appeal presents only potential legal challenges to the restitution award, no statement of facts is provided. However, the procedural background regarding the restitution award is hereby provided.
After defendant pled guilty to the voluntary manslaughter charge, the trial court raised the issue of restitution. The prosecution indicated that it was requesting victim restitution. The defense responded that victim restitution was not part of the plea agreement. Moreover, defendant expressed concern that any obligation imposed would become the responsibility of his family. The parties therefore agreed that the trial court would reserve jurisdiction and hold a subsequent hearing on the amount of restitution, if any, to award the victims. Thereafter, the prosecution filed a motion for restitution, attaching supporting documents.
At the hearing on the motion for restitution, the prosecution requested $50,746.11 in restitution; the amount reflected the funds expended by the Victims Restitution Board on behalf of the victims of the charged offenses. The defense objected to the restitution request on the grounds that the majority of the restitution involved medical expenses incurred by the victim of the attempted murder; a charge to which defendant had not pled guilty, and that had been dismissed as part of the plea agreement. The prosecution responded that the restitution related to the dismissed count was permissible because defendant had executed a Harvey[3]waiver in conjunction with his plea. The trial court agreed and awarded restitution in the amount of $50,746.11.
III
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
We have now concluded our independent review of the record and find no arguable issues.
IV
DISPOSITION
The superior court clerk is directed to amend the abstract of judgment and minute order of February 9, 2007, to correctly reflect that defendant pled guilty to section 12022.5, not section 12022.53, and forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] Although defendant pled guilty to section 12022.5, as indicated in the plea agreement and reporters transcript, the minute order and the abstract of judgment inaccurately state that defendant pled guilty to section 12022.53. Therefore, both the minute order and abstract of judgment should be amended to correctly reflect that defendant pled guilty to section 12022.5.
[3]People v. Harvey (1979) 25 Cal.3d 754 [a sentencing court may not consider previously dismissed charges not transactionally related to the charges of which defendant is convicted].)
