P. v. Garcia
Filed 6/21/06 P. v. Garcia CA4/1
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California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE, Plaintiff and Respondent, v. RAFAEL GARCIA, Defendant and Appellant. | D047630 (Super. Ct. No. SCN196804) |
APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed.
Rafael Garcia entered a negotiated guilty plea to causing injury to another while driving under the influence of alcohol. (Veh. Code, § 23153, subd. (a).) He admitted having a blood/alcohol level of .20 percent or higher (Veh. Code, § 23578) and inflicting great bodily injury in the commission of the offense (Pen. Code, § 12022.7, subd. (a)). The court sentenced him to prison for five years: the two-year middle term for causing injury while driving under the influence of alcohol, enhanced three years for personally inflicting great bodily injury. It ordered Garcia to pay $1,780,451 restitution to the victim and a $1,000 restitution fine. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether a sufficient factual basis supports the guilty plea; (2) whether Garcia's guilty plea was constitutionally valid; (3) whether the trial court erred by applying a great bodily injury enhancement to a conviction of causing injury while driving under the influence of alcohol; and (4) whether the record contains proof Garcia personally inflicted great bodily injury while committing a felony.[1]
We granted Garcia permission to file a brief on his own behalf. He has responded.
Garcia admits his guilt and recognizes the harm he caused, but he reminds the court he has no criminal record, is a hard worker who supports his family, and tells the court the incident was an accident and he is very remorseful. He asks the court to modify the sentence because his small children need him at home. He expressed these matters to the trial court in his statement in mitigation.
Penal Code section 1170, subdivision (b) provides in part, "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." Determination as to the appropriate term is within the trial court's broad discretion and must be affirmed unless there is a "showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) Here, Garcia has not shown the trial court erred in imposing the five-year sentence.
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, and the issues Garcia has raised has disclosed no reasonably arguable appellate issue. Competent counsel has represented Garcia on appeal.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
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[1] Because Garcia entered a guilty plea, he cannot challenge the facts underlying the conviction. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.
