P. v. Aguirre
Filed 1/22/09 P. v. Aguirre CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. MYNOR D. AGUIRRE, Defendant and Appellant. | A122350 (Marin County Super. Ct. No. SC157719A) |
I. INTRODUCTION
After a plea agreement, appellant was sentenced to a total prison term of seven years and eight months for one count of carjacking (Pen. Code, 215, subd. (a))[1] plus an enhancement for personal use of a firearm ( 12022.5, subd. (a) and an additional one-third of a consecutive midterm for vehicle taking. (Veh. Code, 10851, subd. (a).) Pursuant to People v. Wende (1979) 25 Cal.3d 436, he appeals and asks this court to examine the relevant portions of the record and determine if there are any issues that are deserving of further briefing. We have done so, find none, and hence affirm the trial courts judgment and the sentence it imposed.
II. FACTUAL AND PROCEDURAL BACKGROUND[2]
Early in the morning of February 5, 2008, appellant carjacked a vehicle at gun point in San Francisco. About an hour or so later, that vehicle was seen, overturned, in Tiburon, Marin County. A second driver stopped to offer assistance and appellant, who was standing on the side of the road nearby, took that second drivers vehicle and drove off in it. He was apprehended a few minutes later by the Highway Patrol.
By an amended information filed on May 22, 2008,[3] appellant was charged with the two felony counts and the enhancement noted above, as well as a third count for hit and run driving. (Veh. Code, 20002, subd. (a).)
On May 22, appellant pled guilty to the two counts noted above and admitted personally using a firearm. The third count, for hit and run driving, was dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
On July 2, pursuant to a negotiated plea agreement, appellant was sentenced as noted above. The sentence on the carjacking count was to the low term of three years, to which four years was added for the firearms enhancement and an additional eight months (one-third of the midterm) for the vehicle-taking count, for the total prison term of seven years and eight months noted above. Restitution and parole revocation fines in the amounts of $1,200 each were also imposedalbeit the latter suspendedand the court retained jurisdiction over the issue of victim restitution.
Appellant filed a timely notice of appeal, but his request for a certificate of probable cause was denied.
III. DISCUSSION
Because of appellants plea and the denial of the certificate of probable cause, the only issues before us pertain to post-plea matters.[4] In this case, the only such matter we perceive on this record is the sentence imposed by the trial court. We find no problems with that sentence, in particular because that court selected the low-term for the car-jacking offense (count 1 in the first amended information), used one-third of the mid-term for the vehicle-taking offense (count 2 in that information), and the mid-term, also, for the enhancement under section 12022.5, subdivision (a). The court also acted properly in ordering those terms to be served consecutively as recommended by the probation report, consistent with California Rules of Court, rule 4.425(a)(3).
IV. DISPOSITION
The judgment and sentence imposed are affirmed.
_________________________
Haerle, Acting P.J.
We concur:
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Lambden, J.
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Richman, J.
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[1] All subsequent statutory references are to the Penal Code, unless otherwise noted.
[2] Inasmuch as the case was resolved by a plea agreement, the initial portion of this section is taken from appellants brief which, in turn, was briefly paraphrased from the probation report.
[3] All subsequent dates noted are in 2008.
[4] Inasmuch as appellants request for a certificate of probable cause was denied and his notice of appeal does not reference section 1538.5, our review is limited to grounds arising after the entry of appellants plea. (See 1237.5 and California Rules of Court, rule 8.304(b)(4)(B).)
