Filed 1/23/13 P. v. Garcia
CA6
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
SIXTH APPELLATE DISTRICT
THE
PEOPLE,
Plaintiff and Respondent,
v.
ISMAEL
ANGEL GARCIA,
Defendant and Appellant.
H038308
(Santa Clara County
Super. Ct. No. C1199040)
On
January 27, 2012, defendant
Ismael Angel Garcia pleaded no contest to one count of
Code, § 246)
title="">[1] and one
count of assault with a firearm (§ 245, subd. (a)(2)). Garcia also admitted allegations that he
personally used a firearm in committing the
(a)), as well as that he had suffered a prior strike conviction (§ 1170.12) and
a prior serious felony conviction (§ 667, subds. (a), (b)-(i)). On April
24, 2012, Garcia was sentenced to 26 years, four months in
prison.
We appointed
court. Appointed counsel filed an
opening brief which states the case and the facts, but raises no specific
issues. We notified Garcia of his
behalf within 30 days, and he has filed a letter brief claiming ineffective
assistance of counsel for failing to adequately investigate.
I. Factual and Procedural Background
At about midnight on January 28-29, 2011, in the city of San
Jose, Freddy Bermudez arrived at the home of his
friend Jose Mejia.
title="">[3] Bermudez was invited to the home in order to
celebrate with Mejia and his girlfriend, Sylvia Limon, who had just received a
raise and possible promotion at work.
When Bermudez arrived, there were other people at the residence,
including Garcia, all of whom had been drinking heavily.
At some
point after Bermudez arrived, there was an argument, and Garcia got upset when
he learned that Mejia had been struck by Limon’s ex-boyfriend awhile ago but
did not retaliate. Garcia attempted to
wake up Mejia, who by this time was passed out on his bed. Bermudez and Garcia began arguing about
whether Garcia tried to kick Limon’s dog and, in the course of this argument,
Garcia pushed Bermudez. Limon tried to
calm Garcia and tried to get him to stay since he had been drinking. Extremely inebriated and angry, Garcia left
the residence and drove off. Before he
left, Garcia told Bermudez that he would return. Bermudez thought that Garcia would just go
home and pass out, so he went back into the residence.
About 15 to
20 minutes later, approximately three gunshots went through the glass windows
on the front door. Garcia walked in
armed with a gun, and Limon, upset about the damage to her home, yelled at him
in Bermudez’s presence. Garcia came
after Bermudez and challenged him to a fight.
In the meantime, Limon tried unsuccessfully to wake up Mejia, hid when
Garcia momentarily came into the bedroom, and then called 911.
After
hearing the glass breaking as well as what he thought was a gunshot, Bermudez
fled the residence. He found a bullet
hole in his car and learned from the police that Garcia was responsible.
After the
shots were fired, neighbor Stephen Bufalini saw Garcia walking with a limp down
the street away from his brother’s residence.
Garcia was
charged by information with attempted murder (§§ 187, 664, count 1); shooting
at an inhabited building (§ 246, count 2); first degree burglary (§§ 459, 460,
subd. (a), count 3); and assault with a
firearm (§ 245, subd. (a)(2), count 4).
The information further alleged Garcia:
(1) personally used a firearm in the commission of counts 1 and 3 (§§
12022.5, subd. (a), 12022.53, subds. (b) & (c)); (2) had a prior strike
conviction (§ 667, subd. (a)); and (3) a prior serious felony conviction (§
667, subds. (b)‑i)).
On January 27, 2012, the People amended
the information to allege a firearm enhancement as to count 4. (§ 12022.5, subd. (a).) On that same day, Garcia pleaded no contest
to counts 2 and 4, admitted the firearm enhancement as to count 4 and admitted
having both a prior strike and a prior serious felony conviction. In exchange for his plea, Garcia was to
receive a sentence of 26 years, four months in prison.
On April
24, 2012, Garcia was sentenced to 26 years, four months in prison, consisting
of twice the aggravated term of four years on count 4 plus 10 years for the
firearm enhancement (18 years), plus three years, four months (one-third of the
doubled middle term of 10 years) on count 2, plus five years for the prior
serious felony conviction. He was
awarded 519 days of presentence custody credit.
The trial court imposed a restitution fine of $240 and suspended
imposition of a parole revocation fine in the same amount (§§ 1202.4, subd.
(b), 1202.45).
In his
letter brief, Garcia argues that he and Mejia told his
shot at the floor rather than at the victim and that there was evidence of a
bullet strike on the tile floor of the kitchen.
According to Garcia, his counsel responded it was “to [
investigation was done to see if there was a bullet strike on the floor of
Mejia’s kitchen.
Garcia’s
ineffective assistance of counsel claims cannot be resolved on the appellate
record before us. The California Supreme
Court has “repeatedly stressed ‘that “[if] the record on appeal sheds no light
on why counsel acted or failed to act in the manner challenged[,] . . . unless
counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,†the claim on appeal must be
rejected.’ [Citations.] A claim of ineffective assistance in such a
case is more appropriately decided in a habeas corpus proceeding.†(People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Based on this record, we have no basis for
determining why Garcia’s counsel may have elected not to investigate the report
by Garcia and Mejia that there was a bullet strike on Mejia’s kitchen
floor.
Pursuant to
People v. Wende (1979) 25 Cal.3d 436
and People v. Kelly (2006) 40 Cal.4th
106, we have reviewed the whole record and have concluded there is no arguable
issue on appeal.
II. Disposition
The
judgment is affirmed.
Premo,
J.
WE CONCUR:
Rushing, P.J.
Elia, J.
Further unspecified statutory references are to the Penal Code.
name="_ftn2" title="">[2]
As Garcia pleaded no contest, the facts are taken from the transcript of the
preliminary hearing.
