P. v. Orozco
Filed 3/21/13 P. v. Orozco CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANCISCO JAVIER OROZCO,
Defendant and
Appellant.
H037788
(Monterey
County
Super. Ct.
No. SS100981)
Defendant
Francisco Javier Orozco appeals after pleading no contest to
(Veh. Code, § 10851, subd. (a)), admitting that the offense was committed for
the benefit of a criminal street gang
(Pen. Code, § 186.22, subd. (b)(1))
and admitting that he had a prior strike within the meaning of the Three
Strikes law (§ 1170.12, subd. (c)(1)).
He was sentenced to a nine-year prison term.
On appeal,
defendant’s appointed counsel has filed a brief pursuant to
that states the case and facts, but raises no issue. We notified defendant of his right to submit
written argument on his own behalf within 30 days. The 30–day period has elapsed and we have
received no response from defendant.
Pursuant to
People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006)
40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s
direction in People v. Kelly, supra, at page 110, we provide a brief
description of the facts and the procedural history of the case.
FACTUAL AND PROCEDURAL Background
A. Defendant’s Arrest
On March 23, 2010, Officer Anthony
Parker saw defendant driving a gray Honda Civic. Officer Parker was in uniform, driving a
marked patrol car. He turned on his
lights and siren to initiate a traffic stop, but defendant did not stop. During the subsequent pursuit, defendant ran
stop signs, drove at speeds over the posted speed limits, and crossed the
center line. Eventually, defendant’s car
hit a fence at an apartment complex. He
jumped out of the car and ran, but he was apprehended 15 to 20 minutes later.
Defendant
was not the owner of the Honda. The
vehicle’s owner, who did not know defendant, had last seen the Honda the night
before and had not been aware the vehicle was gone. Inside the Honda, the police found a key ring
with five “shaved keys,†which are used to steal cars. The police also found cell phones, CD cases,
luggage bags, a bag of tools, and a backpack containing a stereo. These items had been taken during burglaries
of a second victim’s home and vehicle.
B. Gang Evidence
Sureños are
one of the primary gangs in
County. Sureños identify with the
number 13, the letter M, and the color blue.
They consider Norteños to be their enemies. The Sureños’ primary activities are vehicle
theft, homicide, assault, burglary, possession, and evasion. In 2007, a Sureño was convicted of carrying a
concealed weapon, with a gang enhancement.
In 2008, another Sureño was convicted of robbery, with a gang
enhancement.
After his
arrest, defendant was housed in an “active Sureno pod†at the jail. During a screening, defendant said he was a
gang member, that his enemies are Norteños, and that he had no problems in the
Sureño pod. Defendant had 12 prior
police contacts during which he had admitted being a Sureño gang member, had
been in the company of Sureño gang members, or had Sureño gang indicia. Defendant has Sureño tattoos. In 2004, he pleaded guilty to vehicle theft
and admitted a gang enhancement.
Officer
Parker believed defendant committed his crimes for the benefit of the Sureño
gang. Evading an officer allows the gang
member to continue committing crimes and gives the gang member the respect of
the gang. Stolen vehicles are used by
Sureño gang members to commit more crimes.
Stolen property can benefit the gang because it can be sold to finance
the purchase of firearms or to bail out other gang members.
C. Charges, Plea, and Sentence
Defendant
was charged, by information, with unlawfully driving or taking a vehicle (count
1; Veh. Code, § 10851, subd. (a)), evading an officer (count 2; Veh. Code, §
2800.2, subd. (a)), possession of burglar’s tools (count 3; § 466), receiving
stolen property (count 4; § 496, subd. (a)), and hit and run driving (count 5;
Veh. Code, § 20002, subd. (a)). The
information alleged that counts 1-4 were committed for the benefit of a
criminal street gang. (§ 186.22,
subds. (b)(1) & (d).) The
information further alleged that defendant had a prior conviction of unlawfully
driving or taking a vehicle (§ 666.5, subd. (a)), which qualified as a
strike (§ 1170.12, subd. (c)(1)), and that he had served a prior prison
term (§ 667.5, subd. (b)).
On May 26, 2011, defendant pleaded no
contest to unlawfully driving or taking a vehicle (count 1; Veh. Code, § 10851,
subd. (a)), admitted that the offense was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)), and admitted that he had a
prior strike (§1170.12, subd. (c)(1)).
The remaining counts and the section 666.5 allegation were
dismissed.
Pursuant to
stipulation, the trial court imposed a nine-year prison sentence. It imposed the three-year upper term for the
vehicle theft, doubled that to six years under the Three Strikes law, and added
a three-year term for the gang allegation.
The trial court also ordered defendant to pay a $1,800 restitution fine
(§ 1202.4, subd. (b)), a $40 court security fee (former § 1465.8,
subd. (a)(1); see Stats. 2011, ch. 10, § 8), a $30 criminal
conviction assessment (Gov. Code, § 70373), and stayed a $1,800 parole
revocation fine (§ 1202.45).
name="_ftnref3" title="">[3]
Discussion
Having carefully reviewed the entire
record, we conclude that there are no arguable
issues on appeal. (
>
The judgment is affirmed.
____________________________________
Bamattre-Manoukian, J.
WE CONCUR:
_________________________________
ELIA, ACTING P.J.
_________________________________
Márquez, J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title=""> [2]
The factual summary is based on the transcript of the preliminary hearing.
