People v. Baldino CA4/1 ( 2021 )

Filed 5/26/21 P. v. Baldino CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078440
Plaintiff and Respondent,
v. (Super. Ct. No. SCD258141)
BRIAN BALDINO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Roderick W. Shelton, Judge. Affirmed.
Sheila O’Connor, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2016, Brian Baldino was charged, along with another person with
murder. A mistrial was declared in Baldino’s case. In 2017, Baldino pleaded
guilty to voluntary manslaughter (Pen. Code,1 § 192, subd. (a)). Baldino also
1 All further statutory references are to the Penal Code.
admitted he was armed with a firearm (§ 12022, subd. (a)(1)). Baldino was
sentenced to the stipulated term of 12 years in prison.
In 2019, Baldino filed a form petition for resentencing under
section 1170.95. The court did not appoint counsel or hold a hearing.2 The
court denied Baldino’s petition by written order finding Baldino’s conviction
of voluntary manslaughter rendered him ineligible for relief under
section 1170.95. The court found Baldino had failed to make a prima facie
case for relief under the statute.
Baldino filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Baldino the opportunity
to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
Counsel has summarized the facts of the offense as they are contained
in the probation officer’s report. We incorporate these background facts here
for convenience.
On February 10, 2008, Ms. Varano lent her car, a black Mustang, to her
boyfriend, Mr. Sumner, who then let two others test drive it to see if it could
be fixed. The men who took it, one of them Destin Withers, the co-defendant,
did not return the Mustang. It was later found in an apartment complex
parking lot.
2 The trial court should have appointed counsel at the early prima facie
stage. (People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18,
2020, S260598.) However, since Baldino is ineligible for relief as a matter of
law, we are satisfied Baldino was not prejudiced by the failure to timely
appoint counsel.
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The next day, the victim, Mr. Vogler, visiting family from Oregon, was
working at the carnival and then headed out to drink beers and play pool at
the Lakeside Roundup, a nearby bar with friends, Sanchez and LaLanne.
They left the bar to go get more money back at the carnival and to use
methamphetamine.
That same night, Mr. Mora, working at the drive-through at Taco Bell,
located near the Lakeside Roundup, saw a black car, described as a Mustang
or a Camaro, idling facing the street. The two white men inside the car had
shaved heads and the passenger had a gun. He thought they were there to
rob the Taco Bell but instead saw the passenger get out, and the car go in
reverse. Mora then heard gunshots minutes later, so he went outside and
saw a man, later identified to be Vogler, lying in the parking lot in front of
Inkers Tattoo.
Two other witnesses also heard the gunshots and saw a black sports
car turn out of the Taco Bell parking lot and onto Prospect Avenue. They saw
two men with shaved heads in the car and a third person running in the
parking lot towards the Lakeside Roundup Bar.
Mr. Vogler passed away from gunshot wounds at the hospital. The
police found three 9mm bullet casings in the Taco Bell lot entrance and a
9mm bullet. The police understood they were looking for a black Mustang or
Camaro and a day later, received a call from Ms. Varano that she had located
her missing black Mustang less than a mile from the site of the shooting.
During their ongoing investigation, the sheriffs discovered that on the
night of the shooting, Mr. Baldino was hanging out with his ex-girlfriend,
Ms. O’Toole, at his apartment smoking methamphetamine with two others,
Ms. Shahan and Mr. Withers, when Mr. Baldino and Mr. Withers suddenly
left to take care of something. They were gone for about an hour and
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returned edgy and anxious. Mr. Withers then left with Ms. Shahan and
Ms. O’Toole and drove around in a black Mustang for most of the night; he
was driving erratically and acting paranoid. Mr. Withers continued to drive
around the next day with Ms. O’Toole and Mr. Baldino when eventually the
car broke down. A neighbor saw the three pushing the car into a parking
space.
The police went to the apartment and tried to speak to Mr. Baldino who
was there alone but hid from the police. In the weeks following, Mr. Withers
was overheard implying he committed the murder with Mr. Baldino and
Mr. Baldino admitted he was the passenger in the black Mustang with
Mr. Withers.
A month later, Mr. Baldino was arrested in a stolen car and he started
crying and said to Ms. O’Toole, “I am going away for a long time because of
Destin Withers’ stupid ass.” But Mr. Baldino continued to deny his
involvement to detectives, although he did admit he saw Mr. Withers with a
gun before. The gun used in the murder was eventually found but no DNA or
fingerprints were recovered.
Detectives continued to investigate and in 2011, Ms. Shahan reported
she was dating Mr. Baldino at the time of the murder and he bragged to her
that he was the passenger in the car when Mr. Withers shot Mr. Vogler. She
said the motive concerned a robbery of methamphetamine. In 2013,
Ms. O’Toole then told detectives that Mr. Baldino admitted he was the
passenger in the car with Withers, and he also admitted he was the last one
holding the gun.
After Mr. Baldino and Ms. O’Toole were arrested on unrelated charges
six months later, she told detectives that a month earlier, Mr. Baldino
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admitted to shooting Mr. Vogler. But, while in custody, Mr. Baldino only told
officers he was the passenger in the car when Mr. Withers shot Mr. Vogler.
While Mr. Withers was in custody, he sent a note to a fellow inmate
admitting to killing Mr. Vogler.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review, and
in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has identified the following possible issues that were considered in evaluating
the potential merits of this appeal:
1. Did the trial court abuse its discretion in denying the
section 1170.95 petition?
2. Did the trial court err in not appointing counsel after Baldino filed
his petition?
3. As a matter of law, does Baldino’s guilty plea and factual basis to
the voluntary manslaughter refute Baldino’s assertions?
We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Baldino on this appeal.
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DISPOSITION
The order denying Baldino’s petition for resentencing under
section 1170.95 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
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