P. v. Aguilar
Filed 7/13/09 P. v. Aguilar CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. JESUS AGUILAR, Defendant and Appellant. | E046917 (Super.Ct.No. SWF021002) OPINION |
APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed with directions.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
An amended information charged defendant and appellant Jesus Aguilar with (1) attempted, willful, premeditated murder in violation of Penal Code[1]sections 664 and 187, subdivision (a) (count 1); (2) willful discharge of a firearm in a grossly negligent manner in violation of section 246.3 (count 2); (3) making criminal threats in violation of section 422 (count 3); and (4) assault with a firearm in violation of section 245, subdivision (a) (count 4). As to counts 1, 2 and 4, it was also alleged that defendant had personally inflicted great bodily injury within the meaning of sections 12022.7 and 1192.7, subdivision (c)(8). As to count 1, it was further alleged that defendant had personally and intentionally discharged a firearm and caused great bodily injury within the meaning of section 12022.53, subdivision (d) and section 1192.7, subdivision (c)(8). As to count 4, it was further alleged that defendant had personally used a firearm within the meaning of section 12022.5, subdivision (a) and section 1192.7, subdivision (c)(8).
Prior to trial, the prosecutor filed a motion to admit defendants prior bad act, firing shots into the air near the victim a few weeks prior to the instant offenses, under Evidence Code section 1101, subdivision (b). The trial court granted the motion. Moreover, following an Evidence Code section 402 hearing, the trial court found that defendants statement to police was admissible because he had been properly advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) in Spanish, and waived those rights prior to making his statement.
After the prosecution set forth its case, defense counsel moved to dismiss counts 1 and 3, under section 1118.1; the court denied the motion. Thereafter, defendant waived his right to testify and defense counsel rested without putting on any evidence. Later that day, the jury found defendant guilty as charged in all counts, and found all special allegations to be true.
The trial court sentenced defendant to 40 years to life. The court sentenced defendant to 15 years to life for count 1, plus an additional 25 years to life for the section 12022.53, subdivision (d) enhancement. The court stayed imposition of the sentence of counts 2 and 4 under section 654. The court sentenced defendant to a concurrent term of three years on count 3. The court stayed imposition of the great bodily injury enhancement as to all counts. The court awarded defendant 399 days of actual credit plus 59 days of good time/work time credit, for a total presentence credit of 458 days. The court imposed a $10,000 restitution fine and other fees. Thereafter, the trial court imposed a $200 parole revocation fine. Defendant concedes that the parole revocation fine should be the same amount as the restitution fine, $10,000. (See 1202.4, 1202.44 & 1202.45.)
Defendant appeals.
I
FACTUAL AND PROCEDURAL HISTORY
Some time before April 9, 2007, defendant had threatened Diego Gallegos Gallardo (the victim) at De Luz Nursery in Riverside. Defendant was upset with the victim for talking to Yvonne Morales, defendants pregnant girlfriend. The victim told defendant he was not going out with Morales.
About three weeks before April 9, 2007, the victim was at his brother-in-laws house when defendant drove by six times. The last time defendant stopped, he fired several shots into the air. Defendant called Morales and told her what he had done.
Morales testified that she believed that statements the victim made to her indicated that the victim wanted to take defendants place and take care of her and the baby. Morales told defendant what the victim had said about defendant not being right for her. Soon thereafter, defendant told Morales that he had purchased a rifle and that an accident might happen to the victim. On a different occasion, defendant said, Im going to take down any guy that comes into your life. Morales never saw the victim threaten defendant.
On April 9, 2007, the victim was at the nursery when defendant drove up in a red pickup truck. Defendant called his name and the victim drove a tractor over to defendant. The two got into an argument. Defendant reached into the back seat of his truck and pulled out a rifle. The victim ran, but defendant shot him in the back. Defendant fired two more shots, one hit the victim in the leg. The victim managed to hide behind some planter boxes. Andres Herrera, who was working at the nursery, told defendant to leave the victim alone. When defendant pointed the rifle at Herrera, Antonio got out of the truck and said, Calm down. Calm down and lets go. Defendant then drove away.
Riverside County Sheriffs Detective Fred Collazo interviewed defendant. After defendant waived his Miranda rights, defendant admitted going to the nursery to shoot the victim, and did so. Defendant never said he intended to kill the victim.
II
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his 14-page handwritten brief written in Spanish, which has been translated by a court certified translator, defendant sets forth his version of the facts regarding counts 1 through 4. Defendant, however, makes no legal arguments.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. We have now concluded our independent review of the record and find no remaining arguable issues.
However, we note that the abstract of judgment reflects that the restitution fine be imposed in the amount of $10,000 under section 1202.4, subdivision (b), but that the parole revocation fine be imposed in the amount of $200 under section 1202.45. Section 1202.44 provides that, In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. Therefore, under section 1202.44, the parole revocation fine should be in the same amount, $10,000, as the restitution fine. Appellate counsel agrees. We shall order the abstract of judgment amended to reflect the correct amount of the parole revocation fine.
III
DISPOSITION
The matter is remanded to modify the parole revocation fine to reflect a fine of $10,000, not $200. The trial court is further ordered to correct the abstract of judgment to reflect the modification, and to forward a copy of the amended abstract to the appropriate correctional authorities. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Hollenhorst
Acting P.J.
/s/ King
J.
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[1]All statutory references are to the Penal Code unless otherwise specified.
