P. v. Jimenez

Filed 4/23/07 P. v. Jimenez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick N. Wapner, Judge. Affirmed.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

______________________________________________

Jose Jesus Jimenez (Jimenez) appeals the judgment entered following his plea of no contest to second degree burglary of a motor vehicle (Pen. Code, 459)^[1]and his admission he previously had served a prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Jimenez to four years in state prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.^[2]

At approximately 9:50 a.m. on October 31, 2005, Alden Galvez (Galvez) parked his gray, 1984 Camaro on South Broadway Avenue. Galvez rolled up the windows and locked the car.

At approximately 11:00 a.m. on October 31st, Los Angeles Police Detective Niall Byrne (Byrne) and his partner were on patrol on Broadway Avenue near Washington Boulevard. As the police vehicle was stopped behind a truck, Byrne, who was the passenger, heard a car alarm go off. Byrne looked to his right and saw that the passenger side door to the car, a 1984 Chevrolet Camaro, was open and someone [was] laying on their back with the[ir] feet in the air . . . .   The persons head appeared to be under the front drivers side dashboard. Byrne and his partner got out of their patrol car, walked over to the Camaro and found Jimenez, who appeared to be fiddling with some wires under the dashboard.

When Byrnes partner knocked on the Camaros drivers side window, Jimenez looked up, appeared startled, then stated,  Oh, you got me.  Byrne ordered Jimenez to get out of the car and took him into custody. A pat-down search of Jimenez revealed a flat blade screwdriver in his right front pants pocket.

Later that day, police informed Galvez someone had broken into his car. Galvez, who had not given anyone permission to enter his car that day, went to investigate. He saw that the window was bent and the bottom of the dashboard was all pulled down. In addition, wires from underneath the drivers side of the dashboard had been disconnected and the car radio, while still in the car, had been pulled out.

2. Procedural History.

On November 29, 2005, Jimenez was charged by information with second degree burglary of a vehicle in violation of section 459. It was further alleged for purposes of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), that a 1991 juvenile petition had been sustained after it was found Jimenez had committed assault with a deadly weapon during which he inflicted great bodily injury and for purposes of section 667.5, subdivision (b), it was alleged Jimenez previously had served two separate prison terms.

At proceedings held on April 25, 2006, Jimenez indicated he was willing to waive his right to a jury trial and proceed with a court trial. The prosecutor indicated it would be no problem if Jimenez wished to waive his right to a jury trial, but that there would be no other agreements. The prosecutor stated, This isnt going to be any kind of a [sentencing] lid case. . . . [] The strike is not going to be stricken. After the trial court then informed Jimenez of his right to be tried by a jury of 12 of his peers, Jimenez indicated he understood the right and waived it.

On June 13, 2006, defense counsel indicated Jimenez had decided he wished to enter a plea. The prosecutor stated he had originally offered a sentence of the low term of 16 months in prison, doubled pursuant to the Three Strikes law, for a total prison term of 32 months. However, the trial court had not approved the offer because it believed Jimenez should be sentenced to at least four years in prison. The prosecutor concluded by indicating he was still willing to offer a prison term of 32 months, however if the court would not approve such an offer, then any plea made by Jimenez would be considered an open plea. The trial court responded, Thats what I said. I wouldnt do less than the four years. If [Jimenez] wants to plead, thats what he can expect to get . . . .

Before Jimenez entered his plea, the trial court addressed him, stating,  . . . I told you at the end of the plea I would give you the four years at 50 percent that the prosecution had offered you at one time, then they took it off the table. [] Besides that, were you promised anything else in order to get you to enter this plea? Jimenez responded, No, your honor. A short time later, the court again addressed Jimenez and stated, Okay. These are the things that can happen to you as a result of your plea. You are going to prison for four years. . . .

After being advised of his right to a jury trial, to confront the witnesses against him, to subpoena witnesses and present a defense, and his privilege against self‑incrimination, Jimenez pleaded no contest to second degree burglary of a motor vehicle in violation of section 459. For purposes of the Three Strikes law, Jimenez admitted having had a juvenile petition sustained for assault with a deadly weapon during which he inflicted great bodily injury. Jimenez also admitted having served two separate prison terms pursuant to section 667.5, subdivision (b), one in 2003 for a conviction of receiving stolen property and one in 1995 for a conviction of burglary.

The trial court sentenced Jimenez to the upper term of three years in state prison for his conviction of second degree burglary of a vehicle and imposed a one year enhancement for the prison sentence Jimenez served in 2003, for a total of four years in prison. The trial court then struck the remaining allegations and admissions. The court indicated it was striking the Three Strikes prior because it was remote in time, the present offense was significantly less serious, and [because it] was . . . an offer that the People had made earlier. Jimenez was awarded presentence custody credit for a total of 351 days, consisting of 235 days actually served and 116 days of good time/work time.

Jimenez timely filed a notice of appeal and a request for a certificate of probable cause on August 14, 2006. (See Cal. Rules of Court, rule 8.308(d).) In his request for a certificate, Jimenez asserted his trial counsel had been ineffective for failing to challenge the validity of Jimenezs prior juvenile adjudication since Jimenez was not the assailant in the injuries inflicted on the victim during the 1991 assault. Jimenez further asserted his ignorance of the law seriously impaired [his] understanding at [the] time [he entered his] . . . plea and that he was not aware . . . of the option [of] self‑representation. The trial court granted Jimenez request for a certificate of probable cause on August 25, 2006.

This court appointed counsel to represent Jimenez on appeal on November 1, 2006.

CONTENTIONS

After examination of the record, Jimenezs appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice dated February 16, 2007, the clerk of this court advised Jimenez to submit within 30 days any contention, ground of appeal or argument he wished this court to consider. No response has been received to date.^[3]

APPELLATE REVIEW

We have examined the entire record and are satisfied Jimenezs counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)^[4]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J. ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The facts have been taken from the transcript of the preliminary hearing.

^[3] In a letter seeking an extension of time within which to file Jimenezs opening brief, appellate counsel indicated, in view of the trial courts granting of Jimenezs request for a certificate of probable cause, she had ordered for review the juvenile courts case file for the matter in which Jimenez had been found to have committed assault with a deadly weapon during which he inflicted great bodily injury. After review of the file, which is not a part of the appellate record, neither counsel nor Jimenez raised any issues with regard to the juvenile adjudication. Accordingly, it can be concluded no arguable issues exist.

^[4] Since the trial court imposed the upper term of three years in prison for Jimenezs conviction of second degree burglary of a vehicle, counsel could have argued the United States Supreme Courts decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) applies. However, the contention would have been without merit. Initially, remanding the matter for resentencing would be to no avail. The trial court could sentence Jimenez to a four year term without imposing the upper term; the court could impose the middle term of two years in prison ( 18), then double it pursuant to the Three Strikes law. In addition, in cases in which a defendant has been sentenced pursuant to a negotiated plea bargain, under the terms of which he or she, although sentenced to the upper term, received some benefit in exchange for the plea (see People v. Rhoden (1999) 75 Cal.App.4th 1346, 1351), we have determined any Cunningham issue which might otherwise have existed was waived. (See People v. Shelton (2006) 37 Cal.4th 759, 767; People v. Buttram (2003) 30 Cal.4th 773, 783). So too, in a case such as Jimenezs, where the trial court imposed an indicated sentence (see People v. Allan (1996) 49 Cal.App.4th 1507, 1516), then struck numerous admissions to Jimenezs advantage, we conclude Cunningham does not apply.