P. v. Gonzalez
Filed 1/15/10 P. v. Gonzalez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. AMADOR GONZALEZ, Defendant and Appellant. | G042491 (Super. Ct. No. 08CF2382) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. Affirmed.
Amador Gonzalez, in pro. per.; and Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Introduction
Defendant Amador Gonzalez entered a guilty plea to charges of attempted murder and aggravated assault, and admitted the truth of sentencing enhancements that he used a deadly weapon and personally inflicted great bodily injury. The trial court sentenced defendant to a total prison term of six years, which was the maximum term specified in the plea agreement.
Defendant appealed, and we appointed counsel to represent him. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel suggested that we consider two issues: (1) was defendant sentenced in accordance with his guilty plea agreement; and (2) did the trial court abuse its discretion by not striking the enhancement for personal use of a knife.
Defendant was given 30 days to file written arguments in his own behalf. Defendant suggested two additional issues: (1) whether he acted in self-defense; and (2) whether his sentence should be reduced.
We have examined the entire record, counsels Wende/Anders brief, and defendants supplemental brief; we find no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
Statement of Facts and Procedural History
About 10:30 p.m. on August 16, 2008, while walking down Fifth Street in Santa Ana, Jose Sotelo was approached by three Hispanic men, including defendant. Sotelo recognized defendant and defendants brother as two of the men. Defendant accused Sotelo of having incorrectly completed a job for him, costing defendant a lot of money. The three men threatened to beat up Sotelo, and defendants brother punched Sotelo in the face. Defendant then pulled out a utility knife and raised it in the air. Sotelo heard defendant say, in Spanish, [y]oure going to die. Defendant then swung the knife in a sideways slashing motion at Sotelos throat and arm. Defendant and the other two men followed Sotelo, but walked away after noticing a security guard nearby. Sotelo was treated at a hospital, and received a total of 20 stitches in his arm.
Defendant was charged with attempted murder (Pen. Code, 187, subd. (a), 664, subd. (a)), and aggravated assault (id., 245, subd. (a)(1)). The information alleged defendant personally used a deadly weapon in committing attempted murder (id., 12022, subd. (b)(1), 1192.7), and personally inflicted great bodily injury in committing both counts (id., 12022.7, subd. (a), 667.5, 1192.7).
Defendant entered a guilty plea on June 8, 2009. The factual basis for defendants guilty plea was set forth on the guilty plea form as follows: In Orange County, California, on August 16, 2008, I did unlawfully and with the specific intent to kill, attempt to murder Jose S., a human being; I did willfully & unlawfully commit an assault upon the person of Jose S. with a deadly weapon and instrument[,] a knife; I did personally use said knife, a deadly weapon, in the commission of the attempted murder; I personally inflicted great bodily injury on Jose S. during the commission of the attempted murder and assault.
Defendant acknowledged in his guilty plea form that he was not eligible for probation and he would be sentenced to prison. The plea agreement specified a 6 year state prison lid. Defendant waived his right to appeal from the guilty plea, or from any legally authorized sentence within the plea agreements terms.
The trial court sentenced defendant to a total prison term of six years: the low term of five years on the attempted murder count, plus one year for the personal use of a knife enhancement. The court stayed imposition of sentence on the aggravated assault count, and struck the great bodily injury enhancements for sentencing purposes
only. Restitution and parole revocation restitution fines were imposed, as was a security fee and a criminal conviction assessment fee. Defendant was awarded a total of 393 days of presentence credit. Defendant timely appealed.
Analysis of Suggested Issues
Was defendant sentenced in accordance with his guilty plea agreement? Defendants guilty plea agreement provided for a six‑year lid on his sentence; defendant was sentenced to a total term of six years. The sentence imposed was consistent with the guilty plea agreement. (People v. Shelton (2006) 37 Cal.4th 759, 767‑768 [a negotiated plea agreement is a form of contract, to be interpreted to give effect to the parties mutual intention].)
Did the trial court abuse its discretion by not striking the personal use of a knife enhancement? The trial court has discretion to strike sentencing enhancements under Penal Code section 1385, subdivision (c). (People v. Carmony (2004) 33 Cal.4th 367, 375.) Given the facts set forth in defendants guilty plea form, we conclude the trial court did not abuse its discretion in refusing to strike the enhancement.
Did defendant act in self‑defense? Although defendant contends in his supplemental brief that he was acting in self‑defense when he stabbed Sotelo, his written allocution admits his guilt and the facts of all the sentencing enhancements. Nothing in the record convinces us the facts admitted by defendant in his guilty plea form should be ignored in favor of the facts set forth in his supplemental brief on appeal.
May defendants sentence be reduced? Defendant asks this court to reduce his sentence. The sentence imposed was authorized by law, and was within the plea agreement. We find no error by the trial court in imposing the sentence.
Disposition
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.
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