People v. Garcia CA6 ( 2013 )

Filed 12/10/13 P. v. Garcia CA6
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039505
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1237734)
v.
MARTIN RIOS GARCIA,
Defendant and Appellant.
A jury found Martin Garcia (defendant) guilty of two counts of carrying a
concealed dirk or dagger. (Pen. Code, § 21310, counts one and two.) Following a bench
trial, the court found true the allegations that defendant had suffered a prior strike
conviction and had served two prior prison terms. (Pen. Code, §§ 667, subds. (b)-(i),
1170.12, 667.5, subd. (b).) Subsequently, the court sentenced defendant to state prison
for 32 months on count one with a concurrent term of 32 months on count two.
Defendant filed a timely notice of appeal.
Defendant's appointed counsel has filed an opening brief in which no issues are
raised and asks this court for an independent review of the record as required by People
v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that defendant was
notified that no issues were being raised by counsel on appeal and that an independent
review under Wende was being requested.
On August 16, 2013, we notified defendant of his right to submit written argument
on his own behalf within 30 days. That time has passed and we have not received a
response from defendant.
Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and
have concluded there are no arguable issues on appeal. Pursuant to People v. Kelly
(2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history
of the case, the crimes of which the defendant was convicted, and the punishment
imposed." (Id. at p. 110.)
Facts and Proceedings Below
The Santa Clara County District Attorney charged defendant by information filed
on October 4, 2012, with two counts of carrying a concealed dirk or dagger. In the
information, the District Attorney alleged that defendant had suffered a prior strike
conviction and had served two prior prison terms. (Pen. Code, §§ 667, subds. (b)-(i),
1170.12, 667.5, subd. (b).)
At trial, the evidence established that shortly after 6:00 p.m. on July 25, 2012, San
Jose Police Officer Enrique Duran was on patrol in an unmarked police car with his
partner Officer Ramirez. Officer Duran saw defendant engaged in an argument with a
young woman. According to Officer Duran, when defendant and the young woman saw
him they walked away into an apartment complex. Officer Duran stopped the patrol car;
after he got out of the car he walked toward defendant and then searched him.1 In the
right rear pocket of defendant's pants Officer Duran located two fixed blade knives that
were in a sheath; he found a folding knife in the same pocket.
Officer Duran testified that the fixed blade knives had sharp points and the edges
of the knives could cut skin if wielded with sufficient force, however, they lacked the
sharpness of a kitchen knife.
1
The parties stipulated that Officer Duran conducted a lawful search of defendant.
2
The jury deliberated for less than an hour before finding defendant guilty as
charged. As noted, subsequently, the court found true the allegations that defendant had
suffered a prior strike conviction and had served two prior prison terms. The prosecutor
presented evidence in the form of certified copies of the record of defendant's prior
conviction in case number CC597993, for inflicting corporal injury on a spouse or
cohabitant, in which defendant admitted that he had caused great bodily injury to the
victim; and certified copies of abstracts of judgment that showed that defendant had
served a prison term for that case and in case number C1071869.
Before sentencing, defendant brought a motion requesting that the court reduce his
convictions to misdemeanors and to strike his prior strike conviction. (People v. Superior
Court (Romero) (1996) 13 Cal.4th 497.) At the sentencing hearing, after defense counsel
emphasized that the probation officer should have given more credit to the fact that
defendant had completed his G.E.D. during one of his periods in custody, the court
denied both requests. As to the Romero motion, the court found that defendant's
prospects for staying crime free were poor. His criminal history revealed that he had
engaged in a pattern of "continuous illegal activity." Further, the strike prior involved the
infliction of serious injuries to the victim. Moreover, at the time of the present offenses,
defendant was on parole and had two outstanding arrest warrants. The court recognized
that defendant had a long term problem with drug addiction, but noted that he had made
minimal efforts to address his addiction and thus remained a threat to the public. In sum,
the court found that defendant did not fall outside the spirit of the three strikes law.2
Accordingly, the court sentenced defendant to 32 months in state prison—the low
term of 16 months on count one doubled because of the prior strike conviction (Pen.
Code, § 667, subd. (e)(1)); and a concurrent term of 32 months on count two (the low
2
The court denied the motion to reduce counts one and two to misdemeanors "for
many of the reasons that are intertwined with reasons for denying the Romero, but also
the facts surrounding the defendant's conviction, and also prospects."
3
term of 16 months doubled). The court struck the additional punishment for the prison
priors pursuant to Penal Code section 1385. The court imposed various fines and fees
and awarded defendant credit for time served of 336 days—168 actual days and 168 days
of conduct credits.
Upon our independent review of the record, we conclude there are no meritorious
issues to be argued, or that require further briefing on appeal. At all times, defendant was
represented by competent counsel.
Disposition
The judgment is affirmed.
_______________________________
ELIA, Acting P. J.
WE CONCUR:
____________________________
MIHARA, J.
____________________________
GROVER, J.
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