P. v. Garcia

Filed 5/7/08 P. v. Garcia CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

Rita Barker, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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Pursuant to a plea agreement, appellant Isaac Garcia pled no contest to first degree burglary (Pen. Code, 459, 460, subd. (a))^[1]and the offense commonly known as street terrorism ( 186.22, subd. (a)), and admitted allegations that in committing the burglary he personally used a firearm ( 12022.5, subd. (a)) and personally inflicted great bodily injury on a person not an accomplice ( 12022.7, subd. (a)). The court imposed an aggregate prison term of 13 years, consisting of the six-year upper term on the burglary conviction, the four-year midterm on the arming enhancement and three years on the great bodily injury enhancement. The court also imposed a concurrent two-year midterm sentence on the street terrorism conviction, and awarded appellant 468 days of presentence credits, consisting of 401 days of actual time credits and 61 days of conduct credits pursuant to section 2933.1. Appellant did not request, and the court did not issue, a certificate of probable cause ( 1237.5).

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant himself has filed a letter in which he raises various issues which we discuss below. We will affirm.

FACTUAL BACKGROUND AND SENTENCING

Facts^[2]

At approximately 2:30 a.m. on February 14, 2006 (February 14), Hanford Police Officer Pontecorvo received a report of a shooting. In investigating that report, the officer made contact with Trenton Wells at Hanford Community Medical Center. Wells told the officer the following. He had been asleep in his bedroom when he was awakened by three to four persons kicking in his bedroom door. The intruders began hitting appellant and asking him where the money was. One of them struck Wells in the head with a gun. Wells fought back, as the fight moved from room to room in the house. During the fight he was shot three times, and he believed one of his attackers was also shot. At one point he heard one of them say, Hey Earl, I thought the safety was on! The attackers were wearing white shoes.

On February 14 at 1:58 a.m., Hanford Police Officer Jimenez arrived at Central Valley General Hospital, after receiving a report of a gunshot victim, and made contact with other officers who told Officer Jimenez that appellant claimed to have been shot by some scraps. Approximately one-half hour later, appellant told another officer that he had been drinking with his friend Earl and some others . Appellant was wearing white shoes.

Sentencing

Prior to entering his plea, appellant waived his right to trial by jury on the issue of whether there are aggravating circumstances that would make the upper term of the burglary charge appropriate.

In imposing the upper term, the court found as circumstances in aggravation that appellant had suffered two juvenile adjudications of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); he committed one of those offenses for the benefit of a criminal street gang; and those offenses, [considered] in combination with the nature and circumstances of the crime in this case lead the Court to conclude beyond a reasonable doubt that Mr. Garcia has engaged in violent conduct which indicates a serious danger to society, an aggravating factor which outweighs the mitigating circumstances that are present here. The court made no findings as to circumstances in mitigation. The RPO mentioned one such circumstance: The defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process.

DISCUSSION

Appellant first argues, as best we can determine, that his plea was neither knowing, voluntary or intelligent, and therefore invalid, because (1) when he pled no contest to street terrorism in violation of section 186.22, subdivision (a), for which he received two years in prison, he thought he was admitting a gang enhancement under section 186.22, subdivision (b), which, he thought, would subject him to only eight months in prison; (2) he did not know that he would be limited to presentence conduct credits of not more than 15 percent of his actual period of presentence confinement pursuant to section 2933.1;^[3]and (3) he thought he would receive the midterm, rather than the upper term, on his burglary conviction. However, because appellant failed to obtain a certificate of probable cause his challenge to the validity of his plea is not cognizable on this appeal. ( 1237.5, People v. Panizzon (1996) 13 Cal.4th 68, 76 [challenge to validity of a plea requires certificate of probable cause].)

Appellant also contends the court abused its discretion in imposing the upper term. There is no merit to this contention. Sentencing courts have wide discretion in weighing aggravating and mitigating factors . We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational. [Citations.] (People v. Avalos (1996) 47 Cal.App.4th 1576, 1582.) The imposition of the upper term was well within the courts discretion.

Finally, citing Cunningham v. California (2007) 549 U.S. 270, appellant suggests that the court, in imposing the upper term based on an aggravating factor not found true by a jury, violated appellants Sixth Amendment right to trial by jury. We need not address the merits of this claim because, as indicated above, appellant specifically waived his right to jury trial on factors used to impose an upper term.

Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.

DISPOSITION

The judgment is affirmed.

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^*Before Wiseman, Acting P.J., Levy, J., and Gomes, J.

^[1] All statutory references are to the Penal Code.

^[2] Our factual statement is taken from the report of the probation officer (RPO).

^[3] Appellant was subject to the section 2933.1 limit on presentence conduct credits because of his conviction in the instant case of a felony in which he personally inflicted great bodily injury on a person not an accomplice. ( 2933.1, 667.5, subd. (c)(8).)