P. v. Saechao

Filed 5/25/10 P. v. Saechao CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

----

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436.[1] Having reviewed the record as required by Wende, we affirm the judgment.

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)

On December 11, 2008, Pao Saechin was standing in front of a friends home when a car pulled up and two men exited. One of the men walked up to Saechin and punched him in the face with a gloved hand under which it seemed there were brass knuckles. The force of the blow knocked him down and broke his jaw. Saechin and another witness identified defendant as the assailant. When defendant was later arrested for this and other offenses, he attempted to evade the officers.

Defendant was charged in case No. 09F302 with battery with serious bodily injury (Pen. Code, 243, subd. (d)),[2] assault by means of force likely to result in great bodily injury ( 245, subd. (a)(1)), and resisting or obstructing a peace officer ( 148, subd. (a)(1)). It was further alleged that defendant had personally inflicted great bodily injury and that he was on bail at the time of the offenses. ( 12022.7, 12022.1.) The information also alleged that defendant had a prior serious felony conviction ( 667, subd. (a)(1), 1170.12), had served a prison term for that offense ( 667.5, subd. (b)), and had served two additional prior prison terms ( 667.5, subd. (b)).

On December 21, 2008, Steven Smith was at a friends apartment when defendant San Chio Saechao and Tiffany Dugan arrived. Smith announced he was leaving to sell a truck. After selling the truck, he had $3,875 in cash on his person. Thereafter, Dugan called Smith and asked him to meet her in Redding. Smith met Dugan, who was with defendant, and they went into a store where Smith used some of the cash, which he retrieved from his jacket pocket, to buy clothing for Dugan. Later that day, Dugan called Smith and told him defendant had beaten her up. She asked Smith for help and asked him to meet her at a house in Redding. Smith arrived at the house and, while looking for Dugan, someone pulled him into the garage where several people began beating and punching him. During the attack, he felt someone reach into his jacket pocket. After the beating, he heard discussion on what they would do if he died. At one point, a light came on and he saw defendant, Dugan and two other men. The next thing Smith remembered was waking up in the hospital. He had a laceration on his forehead and a broken or dislocated finger.

Defendant was charged in case No. 09F619 with first and second degree robbery ( 211), battery with serious bodily injury ( 243, subd. (d)), and assault by means of force likely to result in great bodily injury ( 245, subd. (a)(1)). It was further alleged that the first degree robbery was committed in concert with two or more people. ( 213, subd. (a)(1)(A).) It was also alleged that defendant had personally inflicted great bodily injury ( 12022.7), was on bail at the time of the offenses ( 12022.1), had two prior serious felony convictions ( 667, subd. (a)(1), 1170.12), had served prison terms for those offenses ( 667.5, subd. (b)), and had served an additional prior prison term ( 667.5, subd. (b)).

Defendant pled no contest in case No. 09F302 to assault with great bodily injury and admitted having a serious prior strike felony. He pled no contest in case No. 09F619 to second degree robbery and admitted one prior prison term, one prior serious strike felony, and one prior serious five-year felony. The remaining charges and additional trailing cases were dismissed with a Harvey waiver.[3] Defendant agreed to an aggravated term of 16 years in case No. 09F619, with a consecutive two-year term in case No. 09F302, for a stipulated aggregate term of 18 years in state prison. He waived his right to appeal from this stipulated sentence.

The trial court imposed the stipulated term of 18 years in state prison. Defendant was ordered to pay a $7,200 restitution fine, with the same amount suspended pending completion of parole, and $14,812.40 in victim restitution ( 1202.4, 1202.45). He was awarded 256 days custody credit and an additional 38 days conduct credit pursuant to section 2933.1.

Defendant appeals. He did not obtain a certificate of probable cause. ( 1237.5.)

The recent amendments to section 4019 do not operate to modify defendants entitlement to credit, as he was required to register as a sex offender, committed for a serious or violent felony, and/or had a prior conviction(s) for a serious or violent felony. ( 4019, subds. (b)(1), (2) & (c)(1), (2); Stats. 2009, 3d Ex. Sess., ch. 28, 50.)

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

NICHOLSON , Acting P. J.

We concur:

RAYE , J.

CANTIL-SAKAUYE , J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

[2] Further undesignated statutory references are to the Penal Code.

[3]People v. Harvey (1979) 25 Cal.3d 754.