People v. Robles CA6 ( 2014 )

Filed 11/10/14 P. v. Robles CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040968
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS131927A)
v.
MARIO VILLEGAS ROBLES,
Defendant and Appellant.
Pursuant to a negotiated disposition, Mario Villegas Robles (defendant) pleaded
no contest to one count of carrying a concealed firearm in a vehicle by a felon. (Pen.
Code, § 25400, subds. (a)(1), (c)(1).) Defendant admitted that he had a prior conviction
within the meaning of Penal Code section 1170.12, subdivision (c)(1). In exchange for
his no contest pleas, defendant was promised a maximum prison term of four years and
that his Romero1 motion would be heard at the time of sentencing.
Subsequently, on April 22, 2014, the court denied defendant's request to strike the
prior conviction allegation and sentenced defendant pursuant to the terms of the
negotiated disposition. The court imposed the midterm of two years doubled pursuant to
Penal Code section 1170.12, subdivision (c)(1). The court imposed various fines and
fees, including a $1,200 restitution fund fine (id., § 1202.4, subd. (b)), which the court
calculated as "$300 times the number of years times the number of felony counts."
1
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court awarded defendant 172 days of presentence custody credits—86 actual days
and 86 days of conduct credits. (Id., § 4019.)
On the motion of the district attorney, the court dismissed several remaining
charges.
Defendant filed a notice of appeal on April 28, 2014, in which he appealed from
the judgment on the ground that the court had committed sentencing error.
Defendant's appointed counsel has filed an opening brief in which no issues are
raised. Counsel asks this court to conduct 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, that an
independent review under Wende was being requested, and that defendant was notified
that he could file a supplemental brief with this court.
On July 25, 2014, by letter, 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 Below2
On September 18, 2013, at approximately 9:00 p.m., two detectives from the
Monterey County Sheriff's Department were in Salinas searching for a vehicle suspected
to have been involved in home burglaries; the car was being driven by an adult male.
2
The facts are taken from the probation officer's report.
2
The detectives saw a vehicle that matched the description of the suspect car and noticed
that it did not have a front license plate.
The detectives stopped the car. The driver said his name was Mario (later
identified as defendant). Defendant did not have a driver's license. He appeared nervous
and was looking away from the detectives. The detectives asked defendant to get out of
the vehicle, but he refused. The detectives noticed that defendant appeared to be
attempting to conceal something in his lap or waist band area. Several times the
detectives asked defendant to keep his hands up where they could see them; defendant
did not comply. Again, he refused to get out of the vehicle and questioned the detectives
as to why he was being stopped.
The detectives attempted to open the driver's side front door, but it was locked.
Loudly, one detective asked the other detective who was talking to the passenger, to
unlock the car doors (the passenger door was already open). Finally, defendant opened
the driver's side door, but continued to conceal something in his waist band area.
Defendant's right hand continuously "dipped down" toward his midriff area. Immediately
the door was unlocked, the detectives opened the door and grasped defendant's hand and
pulled him out of the vehicle.
For officer safety, the detectives placed defendant in handcuffs and patsearched
him. Defendant pressed his right thigh area against the vehicle in an effort to conceal
something. The detectives found a handgun inside defendant's right front pocket and a
glass methamphetamine smoking pipe in his left front pocket. As one of the detectives
cleared the gun, defendant told them that it was not loaded.
The detectives read defendant his Miranda3 rights, which he acknowledged and
then invoked his Fifth Amendment rights. A records check showed that defendant was
3
Miranda v. Arizona (1966) 384 U.S. 436.
3
driving on a suspended license, was on probation in one case, was on bail in another, and
had served a prior prison term.
The handgun confiscated from defendant was a "Glock, Model 17, 9mm," with
16 hollow point rounds in the magazine, which was inside the gun; no bullets were in the
chamber. The gun was found to have been stolen during a home burglary that occurred
on August 11, 2013.
The Monterey County District Attorney charged defendant with one count of
carrying a concealed firearm in a vehicle by a felon (Pen. Code, § 25400, subds. (a)(1),
(c)(1), count one,); one count of felon in possession of a firearm (id., 29800, subd. (a)(1),
count two); one felony count of receiving stolen property (id., § 496, subd. (a), count
three) and one count of driving on a suspended license (Veh. Code, § 14601.2, subd. (a),
count four.) As to counts one, two, and three, the district attorney alleged that defendant
was out on bail in case No. SS130850A when he committed the offenses (Pen. Code,
§ 12022.1); that defendant has suffered a prior conviction for assault with a firearm (id.,
§ 245 subd. (a)(2)); that he had served two prior prison terms within the meaning of Penal
Code section 667.5(b).
Before defendant entered his no contest plea, he executed a "WAIVER OF
RIGHTS PLEA OF GUILTY/NO CONTEST" form in which he was advised of and
waived his constitutional rights to a jury trial, his right to present a defense and to
confront witnesses, and his right against self-incrimination.4 Defendant was advised of
the immigration consequences of his plea. Prior to taking defendant's plea the court
confirmed with defendant that he had had time to talk to his attorney and that prior to
signing and initialing the waiver form he had read it. The court found that there was a
factual basis for the plea.
4
Defendant's initials appear in the applicable boxes and his signature is on the form.
4
Upon our independent review of the record, we conclude there are no meritorious
issues to be argued or that require further briefing on appeal. Defendant received the
sentence he was promised; and the record indicates that he was informed of and
knowingly and intelligently waived his constitutional rights before he entered his pleas.
Further, the fines and fees imposed are supported by the law and the facts.5
Disposition
The judgment is affirmed.
5
We note that it appears that to determine the amount of the restitution fine the
court used the formula in Penal Code section 1202.4, subdivision (b)(2), which provides
in relevant part: "In setting a felony restitution fine, the court may determine the amount
of the fine as the product of the minimum fine . . . [in defendant's case $280 at the time he
committed his offense on September 18, 2013] multiplied by the number of years of
imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted." "It is well established that the imposition of
restitution fines constitutes punishment, and therefore is subject to the proscriptions of
the ex post facto clause and other constitutional provisions." (People v. Souza (2012) 54
Cal.4th 90, 143.) Accordingly, the amount of a restitution fine is calculated as of the date
of the offense. (Ibid.) Nevertheless, defendant did not object to the court using $300 as
the statutory minimum and has therefore forfeited any challenge to the amount of the
restitution fine by failing to object below. The rule of forfeiture applies to ex post facto
claims, particularly where the alleged error could easily have been corrected had it been
timely brought to the trial court's attention. (See People v. White (1997) 55 Cal.App.4th
914, 917.) "[C]omplaints about the manner in which the trial court exercises its
sentencing discretion and articulates its supporting reasons cannot be raised for the first
time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.)
5
_________________________________
ELIA, Acting P. J.
WE CONCUR:
_______________________________
BAMATTRE-MANOUKIAN, J.
_______________________________
MIHARA, J.