P. v. Alvarado
Filed 4/3/13 P. v. Alvarado 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opinion has not been certified for publication or ordered published for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.
RICARDO RODRIGUEZ ALVARADO,
Defendant and
Appellant.
H038716
(Monterey
County
Super. Ct.
No. SS120776A)
contest to one count of assault by means of force likely to produce great
bodily injury and admitted that he personally inflicted
great bodily injury on the victim (Pen. Code, §§ 245, subd. (a)(4), 12022.7,
subd. (a)).
On August 17, 2012, the court denied probation and sentenced
defendant to six years in state prison consisting of the middle term of three
years for the assault and three years for the great bodily injury
enhancement. The court awarded defendant
credit for time served of 113 actual days and conduct credits of 16 days.
court imposed a $240 restitution fund fine, imposed but suspended a parole
revocation fine in the same amount, and imposed $70 in assessments. The court ordered that defendant pay
restitution to the victim in an amount to be determined after a restitution
hearing. Subsequently, defendant filed a
timely notice of appeal.
Defendant's appointed counsel has
filed an opening brief in which no issues are raised and asks this
court for an independent review of the record as required by People
v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that defendant was
notified that no issues were being raised by counsel on appeal and that an
independent review under Wende was being
requested.
On December 19, 2012, we notified
defendant of his right to submit written
argument on his own behalf within 30 days.
We received a letter from defendant,
in which he contends, in essence, that the incident that led to his conviction
was an accident, not an intentional act, and he did not mean to harm the
victim. In addition, he asserts that his
sentence was "excessive."
Pursuant to
Wende, supra,
25 Cal.3d 436, we have reviewed the entire record and have concluded there is
no arguable issue on appeal. Pursuant to
People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief
description of the facts and procedural history of the case, the crimes of which
the defendant was convicted, and the punishment imposed." (Id.
at p. 110.) In addition, we have
described defendant's contentions. We
will explain why we reject them. (Id.
at p.113.)
Facts
title="">
On April 27, 2012, at approximately 2:30 a.m. William Campbell, a tow truck driver,
went to repossess a 2005 Chrysler 300 from a residence on Lohman
Street in Salinas. Campbell
had been directed by the bank to repossess the vehicle because the payments on
the vehicle were delinquent. After
hooking up the vehicle to his tow truck, Campbell
drove away from Lohman Street
and stopped on Russell Road
to hook the tow lights onto the towed vehicle.
As he was so doing, a red Ford F150 pickup truck pulled up behind his
tow truck and stopped. Campbell
was at the side of the road and not blocking traffic.
Campbell
was not able to see the driver of the pickup truck because the truck's high
beams were on. After putting the tow
lights on the towed vehicle, Campbell
started to move back alongside the passenger side of the vehicle toward the
driver's side of the tow truck. As he
did so, the driver of the pickup truck backed up slowly and pulled out into the
traffic lane. The driver turned the
pickup truck toward the towed vehicle and accelerated toward Campbell. Campbell
tried to get out of the way, but was struck by the side of the pickup
truck. Campbell
was thrown to the ground and the truck continued past as Campbell
threw his arms over his face and head; the pickup truck's passenger side rear
tire glanced off his arm.
The driver
of the pickup truck drove down the street and stopped. Campbell
telephoned the police. Subsequently, he
was transported to Natividad Medical
Center for treatment. Campbell
suffered four broken ribs, a severely sprained ankle, a compressed/bruised
heart, bruising all over his body, a fractured "tibula"
and a knee injury.
Deputies
located defendant in his pickup truck at the scene and he was arrested. The right front fender of the truck was
substantially dented and the passenger side mirror was broken. Defendant told the police that he was asleep
when his wife woke him and said that someone was stealing her car. He drove his truck around and found his wife's
car nearby. He pulled up behind his
wife's car and saw a man holding something in his left hand. Defendant said he was not quite sure what it
was, but it scared him. Defendant said
he wanted to get away, so he accelerated and steered around the vehicle. He claimed that he was not trying to hit the
man, but admitted that he did. He drove
away, but returned when he realized what had happened. Defendant was surprised to learn that his
wife's car was being repossessed; he did not know that his wife had failed to
make the required payments.
Proceedings Below
On April 30, 2012, the Monterey County
District Attorney filed a complaint in which defendant was charged with one
count of attempted premeditated murder
(§§ 644, 187 subd. (a), count one),
name="_ftnref5" title="">[5]
with an allegation that defendant personally used a deadly and dangerous
weapon, to wit a vehicle, within the meaning of section 12022, subdivision
(b). In addition, defendant was charged
with assault by means of force or with a deadly weapon (§ 245, subd. (a)(1)
& (4), count two.)
name="_ftnref6" title="">[6] On May
3, 2012, defendant pleaded not guilty to the charges and denied the
allegation.
On May 23, 2012, the court granted the
prosecutor's oral motion to amend the complaint to add a personal infliction of
great bodily injury allegation to the assault count. At the same time, defendant initialed and
signed a "WAIVER OF RIGHTS, PLEA OF GUILTY/NO CONTEST" form,
in which he agreed to plead no contest to assault with force likely to produce
great bodily injury and admit that he personally inflicted great bodily injury
on the victim within the meaning of section 12022.7, subdivision (a).
During the hearing on
defendant's change of plea, the court confirmed with defendant that he had read
the waiver of rights form and understood the constitutional rights he would be
giving up by entering a plea. The court
informed defendant that the maximum penalty for the offense and allegation to
which he would be entering a plea was seven years, but told him that he could
be placed on probation.
conviction would constitute a strike and that his conduct credits would be
limited to 15 percent of actual time served; defendant said that he
understood. Thereafter, defendant
entered a no contest plea to one count of assault with force likely to cause
great bodily injury and admitted the personal infliction of great bodily injury
allegation. Defense counsel stated that
the factual basis for the plea was set forth in the waiver of rights form. The court found that there was a factual
basis for the plea.
name="_ftnref9" title="">[9]
As noted, on August 17, 2012, the court
sentenced defendant to a six-year prison term consisting of three years on the
assault count and three years for the personal infliction of great bodily
injury. The court dismissed the
remaining charges and allegations.
As to defendant's
contention that he hit the victim by accident and that he did not intend to
harm the victim, defendant is in effect challenging the validity of his
plea. Defendant has failed to obtain a
certificate of probable cause and
therefore cannot challenge the validity of his underlying plea. (People
v. Panizzon (1996) 13 Cal.4th 68, 77–79.)
To raise issues other than the sentence imposed or matters occurring
after the plea, defendant is required to seek and be granted a certificate of
probable cause. (§ 1237.5)
As to defendant's
contention that the punishment imposed was "excessive," the record on
appeal shows no indication of improper discrimination by the court. The three year sentence on the assault count
does not exceed the maximum statutory penalty for assault by means of force
likely to cause great bodily injury (§ 245, subd. (a)(4)) and the three year
enhancement is mandated by section 12022.7, subdivision (a). In as much as it is possible that defendant
is arguing that the court abused its discretion in denying him probation, the
court denied probation based on the seriousness of the offense. The court found that the assault was an
intentional violent act rather than carelessness; and this conclusion was
confirmed for the court by the fact that the defendant drove off and did not
immediately come to a stop and get out to explain how sorry he was.
Section 1203, subdivision (b)(3),
provides that if "[t]he court determines that there are circumstances in
mitigation of the punishment prescribed by law or that the ends of justice
would be served by granting probation to the person, it may place the person on
probation." The primary
considerations in granting probation are "[t]he safety of the public,
which shall be a primary goal through the enforcement of court-ordered
conditions of probation; the nature of the offense; the interests of justice,
including punishment, reintegration of the offender into the community, and
enforcement of conditions of probation; the loss to the victim; and the needs
of the defendant . . . ."
(§ 1202.7.)
Criteria affecting the
decision to grant or deny probation involve facts relating to the crime and
facts relating to the defendant. (Cal.
Rules of Court, rule 4.414(a)(1)-(a)(9), (b)(1)-(b)(8).) The facts relating to the crime include
"[t]he nature, seriousness, and circumstances of the crime as compared to
other instances of the same crime," and "[w]hether the defendant
inflicted physical or emotional injury."
(Rule 4.414(a)(1) & (a)(4).)
"As with any exercise of discretion, the sentencing court violates
this standard when its determination is arbitrary or capricious or '
"exceeds the bounds of reason, all of the circumstances being
considered." ' [Citations.]" (People
v. Welch (1993) 5 Cal.4th 228, 234.)
Given that the record supports the court's conclusion that this was an
intentional violent act and not an accident and given the severity of the
injuries that the victim sustained, we cannot say that it was an abuse of
discretion to deny probation.
Upon our independent
review of the record, we conclude there are no meritorious issues to be argued,
or that require further briefing on appeal.
The restitution fine and assessments imposed were supported by the
law. At all times, appellant was
represented by competent counsel.
That being said,
during our review of the record we noticed that the abstract of judgment and
the court minutes reflect that defendant was convicted of a violation of section
245, subdivision (a)(1). Subdivision
(a)(1) of section 245 is in fact assault with a deadly weapon. Defendant pleaded no contest to assault by
means of force likely to produce great bodily injury, which is a violation of
subdivision (a)(4) of section 245. We
will order the court minutes and abstract of judgment amended accordingly.
The
judgment is modified to reflect that defendant was convicted of a violation of
Penal Code section 245, subdivision (a)(4).
The clerk of the court is directed to amend the abstract of judgment and
the court minutes accordingly. Further,
the clerk of
the court is directed to forward to the Department of
Corrections and Rehabilitation the amended abstract of judgment. As so modified the judgment is affirmed.
______________________________
ELIA,
J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.
name="_ftn1" title="">[1] Defendant's conduct credits were
limited to 15 percent pursuant to Penal Code section 2933.1.
name="_ftn2" title="">[2] We received the letter from appellate
counsel after it had been translated from the original Spanish version.
