P. v. Rodelas
Filed 9/4/13 P. v. Rodelas CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
CESAR
RODELAS,
Defendant and Appellant.
A137758
(Alameda County
Super. Ct. No. CH51731)
Defendant
Cesar Rodelas was convicted of numerous crimes following no contest pleas to a
45-count amended information arising out of three separate incidents of serious
domestic violence against his former girlfriend. His appellate counsel has raised no issues
and asks this court for an independent
review of the record to determine whether there are any issues that would,
if resolved favorably to defendant, result in reversal or modification of the
judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a
supplemental brief, and did so on July 26, 2013. Upon independent review of the record, and
after considering the points defendant makes in his brief, we conclude no
and affirm the judgment.
On
September 25, 2012, the
County District Attorney filed an amended, 45-count information charging
defendant with 11 felonies: three counts
of assault with a deadly weapon on June 11, 2011 (Pen. Code, § 245, subd.
(a)(1));
vandalism causing over $400 in damage on June 11, 2011, June 22, 2011, and
September 19, 2011 (§ 594, subd. (a)); kidnapping on June 22, 2011 (§ 207,
subd. (a); 12022, subd. (a)(1)); two counts of criminal threats on June 22,
2011 (§ 422; 12022, subd. (a)(1)); corporal injury to a cohabitant on June 22,
2011 (§ 273.5, subd. (a)), and first degree residential burglary on September
19, 2011 (§§ 459; 462, subd. (a)). The
information also alleged various enhancements, including use of a deadly and
dangerous weapon (an automobile) (§ 1192.7, subd. (c)(31)), serious felony
(§ 1192.7, subd. (c)), armed with firearm (§ 12022, subd. (a)(1)),
and out-on-bail (§ 12022.1).
Defendant was further charged with misdemeanor carrying a dirk or dagger
(former § 12020, subd. (a)(4)) and 33 separate counts of misdemeanor disobeying
a court order (§ 166, subd. (a)(4)).
The
same day, defendant entered a change of plea pursuant to a negotiated
disposition. Defense counsel stated to
the court, “defendant wishes to plead to the sheet essentially admitting every
charge in the information. He
understands he will—that his sentence will be at the court’s discretion. He understands the sentencing range is from
probation to 60 years and four months in prison.†Defendant orally confirmed this was
accurate. Prior to the hearing, he also
had completed a written waiver of rights and plea form setting forth the same
disposition. After duly advising
defendant as to the rights he was waiving (including the right to appeal his
conviction) and the consequences of his plea, the trial court accepted
defendant’s no contest pleas and admissions of the enhancements, found his pleas
were freely and voluntarily made, and found him guilty of the charges. Defendant then waived time for
sentencing.
The
trial court sentenced defendant on December 5, 2012. The court denied probation and imposed a
12-year prison sentence. For the principal
count of kidnapping, the midterm of five years was imposed with a consecutive
one year for the attached arming enhancement.
One-third the midterm sentences were imposed on the counts of criminal
threats (eight months), corporal injury on a cohabitant (one year), first
degree residential burglary (one year four months), and consecutive two-year
term for out-on-bail enhancement under section 12022.1. One-third the midterm sentences were ordered
on the remaining felony counts and enhancements, with those terms to be served
concurrent to the previous terms. On the
misdemeanor counts, the court imposed one day in county jail as to each count,
to run concurrently. It also issued a
10-year protective order as to the victim, and imposed a $10,000 restitution
fine and an additional $10,000 parole restitution fine was suspended pending
successful completion of parole. Credits
of 375 actual days and 56 good conduct days were determined, for a total of 431
days of presentence custody credits.
On
January 28, 2013, defendant filed a timely notice
of appeal.
Section
1237.5 generally precludes an appeal from a judgment of conviction after a plea
of no contest or guilty unless the defendant has applied for, and the trial
court has granted, a certificate of probable cause. (People
v. Johnson (2009) 47 Cal.4th 668, 675.)
There are two exceptions: (1) a
challenge to a search and seizure ruling, as to which an appeal is proper under
section 1538.5, subdivision (m); and (2) postplea sentencing issues. (People
v. Cole (2001) 88 Cal.App.4th 850, 860–861, 868.) There was no search and seizure ruling in
this case.
Defendant
was ably represented by counsel at all times.
At the sentencing hearing, the trial court considered all relevant
matters, made all necessary and appropriate findings, imposed required fines
and fees and issued a stay-away order as to the victim. Defendant was duly sentenced to the midterm
or one third the midterm sentence for his felony offenses and for one day each
on the misdemeanor counts, to be served concurrently. The trial court acted well within its
discretion in denying probation and imposing the midterm. The sentence imposed was substantially less
than the maximum which defendant was advised could be imposed.
In
his letter brief, defendant claims he was denied due process because the court
limited his oral statement at sentencing in response to the allocution to five
minutes. A defendant has a “right to
make a personal statement in mitigation of punishment but only while under oath
and subject to cross-examination by the prosecutor.†(People
v. Evans (2008) 44 Cal.4th 590, 592–593.)
Defendant, however, was not denied the right to make such a statement,
only given a time limit. It is within
the trial court’s inherent powers to control the proceedings before it. (First
State Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 324, 333, 335.)
Defendant
next maintains the court erred in considering a letter from the victim’s father
at sentencing, claiming it violated his due process rights. “It is well settled that allowing statements
from the friends and family of the victim of a violent crime does not violate
due process or the defendant’s right to confront and cross-examine witnesses so
long as the defendant had notice that the statements would be accepted and had
an opportunity to respond.†(
581, 586–587.)
Defendant
also asserts it was error to prosecute or convict him because the victim recanted
her claims and the charges “were brought against him by the DA and not the
victim.†This is a non-sentencing matter
defendant is precluded from raising by virtue of his no contest plea. It is also the prosecutor, not the victim,
who decides whether to press charges.
“The crime-charging power is vested in the public prosecutor by
Government Code section 26501.†(
406, 409.)
After
a full review of the record, we find no arguable issues that would, if resolved
favorably to defendant, result in reversal or modification of the
judgment. We therefore affirm the
judgment.
_________________________
Banke,
J.
We concur:
_________________________
Dondero, Acting P. J.
_________________________
Sepulveda, J.
A137758, People v. Rodelas
All further statutory references are to the Penal Code unless otherwise
indicated.
Appeal, First Appellate District, Division Four, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
