Filed 5/24/22 P. v. Cornejo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Judge. (Retired Judge of the Kings Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant and defendant Jose Sacramento Cornejo pleaded no contest pursuant to a negotiated disposition and was placed on probation. He violated probation, admitted the violation, was reinstated, and then filed the instant notice of appeal. On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.

FACTS[1]

Around 11:00 a.m. on May 23, 2020, Lemoore Police Officer Gresham attempted to detain a man, later identified as defendant, near a motel known for drug sales. Defendant had been in a vehicle, and Gresham believed he had engaged in a narcotics transaction. Defendant ran away and Gresham called for backup assistance.

Officer Rogers responded to the area and drove down a street adjacent to the motel. He saw defendant standing in front of a residence talking to another man. Rogers asked defendant to step away from the residence and to get down on his knees, so he could place him in handcuffs. Defendant complied, but as Rogers tried to place him in handcuffs, defendant got up and ran away.

Officer Rogers ran after defendant and grabbed his shirt. Defendant kept running, resisted Rogers, and his shirt was torn. Rogers used a sweeping maneuver and brought defendant to the ground. Rogers tried to force defendant to lay flat on the ground. Defendant lifted his own body from the ground, threw Rogers over him, got up, and ran away. During this struggle, the ammunition magazines flew out of the pouch on Rogers’s belt and landed on the ground.

Officer Rogers ran after defendant and called for assistance. Rogers caught up with defendant and again brought him down to the ground. Defendant resisted, used his arms to try and push Rogers away, and another struggle ensued. Defendant got on top of Rogers. Rogers felt defendant’s hand grab toward the side of his belt where his service weapon, baton, and knife were affixed.

In the meantime, a civilian arrived at the scene, later identified as the man who defendant had been talking to in front of the residence. The civilian helped Officer Rogers restrain defendant on the ground. He later told Rogers that he was familiar with defendant, and defendant was not welcome at his residence. He also said that he saw defendant’s hand reach toward Rogers’s utility belt during the struggle.

Officer Stevens responded to Officer Rogers’s call for assistance and escorted defendant back to the motel, where Officer Gresham identified him as the suspect who ran away. Rogers met with Gresham at the motel, and they determined that methamphetamine was found in defendant’s car.

PROCEDURAL BACKGROUND

On June 16, 2020, a complaint was filed in the Superior Court of Kings County charging defendant with count 3, misdemeanor resisting arrest on May 23, 2020 (Pen. Code, § 148, subd. (a)(1).

On October 2, 2020, defendant failed to appear in court as ordered, and the court issued an arrest warrant. On October 27, 2020, defendant was taken into custody on the warrant and booked into jail.

On November 16, 2020, a first amended complaint was filed that charged defendant with counts 1 and 2, felony resisting an officer by threats or violence (§ 69); count 3, misdemeanor resisting arrest (§ 148, subd. (a)(1)); and count 4, misdemeanor disturbing the peace (§ 415, subd. (3)), all committed on May 23, 2020, with one prior strike conviction.

On November 16, 2020, and January 26, 2021, defendant failed to appear. On February 24, 2021, the court issued a bench warrant for defendant’s arrest. On March 30, 2021, defendant appeared in court and was held in custody.

On April 5, 2021, the court appointed Mr. Woodbury to represent defendant, and defendant pleaded not guilty.

On April 6, 2021, defendant requested a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). After conducting the confidential hearing, the court denied the motion but relieved Mr. Woodbury. The court appointed Ms. Lee as defendant’s new attorney. On April 12, 2021, Ms. Lee declared a conflict, and the court appointed Mr. Stover.

On April 14, 2021, the court granted defendant’s motion to release him on his own recognizance.

Failure to Appear

On May 6, 2021, defendant failed to appear, and the court issued a bench warrant. On June 25, 2021, defendant appeared in court, after being arrested on the warrant, and remained in custody.

On June 30, 2021, a second amended complaint was filed that charged defendant with counts 1 and 2, felony resisting an officer by threats or violence (§ 69); count 3, misdemeanor resisting arrest (§ 148, subd. (a)(1)); count 4, misdemeanor disturbing the peace (§ 415, subd. (3)); and count 5, felony failure to appear on May 6, 2021 (§ 1320, subd. (b)) with an on-bail/own recognizance enhancement (§ 12022.1, subd. (a)), and one prior strike conviction.

On July 15, 2021, the preliminary hearing was held, and defendant was held to answer on counts 1 and 5.

The Amended Information and Second Marsden Hearing

On July 30, 2021, an amended information was filed that charged defendant with count 1, felony resisting arrest (§ 69); count 2, felony attempted resisting arrest and attempted removal of a firearm from an officer (§§ 664, 148); and count 3, felony failure to appear in court after being released on his own recognizance, on May 6, 2021 (§ 1320, subd. (b)) with the on-bail/own recognizance enhancement (§ 12022.1); and one prior strike conviction.

Also, on July 30, 2021, the court held another Marsden hearing, based on defendant’s request at the preliminary hearing. After conducting the confidential hearing, the court denied the motion. Defendant rejected a plea offer. The court denied his request for another OR release because he had a parole hold.

The Third Marsden Hearing

On September 7, 2021, Mr. Stover appeared via video conferencing because he had COVID, and requested a continuance for the trial. Defendant would not waive time for trial. The court relieved Mr. Stover and appointed Mr. Nushwat for purposes of trial since defendant would not waive time. The court questioned whether defendant was competent.

Immediately after appointing Mr. Nushwat, defendant made another Marsden motion. After a confidential hearing, the court denied the Marsden motion, and defendant refused to accept another plea offer.

Plea and Sentence

On September 24, 2021, the court convened the trial confirmation hearing. The parties advised the court that they had reached a negotiated disposition.

Defendant pleaded no contest to count 1, resisting an officer and count 3, failure to appear with the on-bail/OR enhancement, and admitted the prior strike conviction. The prosecutor dismissed count 2, for a stipulated sentence of nine years four months that would be suspended, and defendant would be placed on probation for a stipulated period of three years and required to attend and complete a residential treatment program. Defendant also waived his right to an appeal.

On October 26, 2021, the court convened the sentencing hearing. The court advised defendant he could withdraw his plea because he was having trouble getting into his desired residential treatment program. Defendant complained his plea was not valid and then decided not to withdraw his plea. Defendant asked to be immediately released from custody. The court declined and said that he would be released to the treatment program instead.

The court suspended sentence, followed the negotiated disposition, and sentenced defendant to nine years four months, based on the upper term of three years for count 1, doubled to six years as the second strike term; a consecutive term of one year four months (one-third the midterm doubled) for count 3; and two years for the on-bail/OR enhancement. The court suspended execution of sentence and placed him on felony probation for three years subject to certain terms and conditions, including completion of a residential drug treatment program.

The court stated it was imposing a total of $780 in fines and fees consisting of a base fine of $200; $200 surcharge (§ 1464); $40 state surcharge (§ 1465.7); $140 penalty assessment (Gov. Code, § 76000); $100 court facility assessments (Gov. Code, § 70372); $20 DNA fund assessment (Gov. Code, § 76104.6); and $80 state-only DNA fund assessment (Gov. Code, § 76104.7).

The court paused and asked defendant if he had “ever worked outside the home.” Defendant said he was a “union iron worker.”

“THE COURT: Okay. So you can earn that kind of dollars to pay that fine, right?

“THE DEFENDANT: Yes.”

The court then imposed a $300 restitution fine (§ 1202.4, subd. (b)), stayed the probation revocation fine in the same amount (§ 1202.44), and reserved any victim restitution. It also imposed the court operations assessment of $40 (§ 1465.8) and the criminal conviction assessment of $30 (Gov. Code, § 70373).

Probation Violation

On November 10, 2021, the court arraigned defendant on a probation violation and appointed counsel, Mr. Boggs. Defendant denied the allegation.

On November 12, 2021, the court held another hearing on the probation violation. Mr. Boggs stated defendant allegedly was kicked out of the treatment program because he was causing problems, but defendant said he was thrown out because he made complaints and filed grievances. Mr. Boggs requested a contested hearing on the probation violation. The prosecutor said defendant voluntarily left the program.

Defendant made another Marsden motion. The court conducted a confidential hearing and denied the motion. The court granted the People’s motion to remand defendant into custody on a no-bail hold but noted that “changes in January.”

On November 24, 2021, defendant waived his right to a contested hearing, admitted the probation violation, and waived time for sentencing. The court reinstated defendant on probation on condition of serving 118 days in custody and again entering a treatment program, and defendant waived 90 days of custody credits.

On December 13, 2021, defendant filed a timely notice of appeal and requested a certificate of probable cause based on ineffective assistance and denial of his speedy trial rights. The court denied the request.

DISCUSSION

As noted above, defendant’s counsel has filed a Wende brief with this court. The brief also includes the declaration of appellate counsel indicating that defendant was advised he could file his own brief with this court. By letter on March 29, 2022, we invited defendant to submit additional briefing. He has failed to do so.

After independent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.

* Before Hill, P. J., Levy, J. and Franson, J.

[1] The following facts are from the preliminary hearing.