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The People v. Matthew Moreno

December 21, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MATTHEW MORENO, DEFENDANT AND APPELLANT.



(Santa Clara County Super. Ct. Nos. CC805539, CC646684)

The opinion of the court was delivered by: Elia, J.

P. v. Moreno 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Matthew Moreno (defendant) appeals from his conviction of attempted premeditated murder and the sentence imposed following a jury trial. In addition, he appeals from the trial court's finding that he was in violation of probation and from the sentence imposed.

Defendant's 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 and Anders v. California (1967) 386 U.S. 738. Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende/Anders was being requested.

On August 20, 2010, we notified defendant of his right to submit written argument on his own behalf within 30 days. To date, we have not received a response from defendant.

Defendant was charged by criminal information, filed by the Santa Clara County District Attorney's Office, with one count of attempted premeditated murder. (Pen. Code, § 664/187.) The information alleged that defendant had personally used a knife within the meaning of Penal Code section 12022, subdivision (b)(1), had suffered a prior strike conviction within the meaning of Penal Code section 667, subdivisions (b)-(i)/1170.12, and that the prior conviction was a serious felony within the meaning of Penal Code section 667.5, subdivision (a).

Defendant entered a plea of not guilty to the charges on September 29, 2008, denied the allegations and waived his speedy trial rights.

Pretrial, at the request of defense counsel, the court ordered the appointment of a doctor pursuant to Evidence Code section 1017. Discovery disputes arose, but were resolved to the satisfaction of both parties. The court heard a Pitchess motion, conducted an in camera hearing and after inspecting the personnel records of one of the police officers involved in this case, the court declared that it did not find any information that fell within the scope of the defendant's discovery request. Thereafter, defendant's attorney declared a conflict and the court appointed defendant a new attorney.

Following approximately one and a half days of testimony, the jury was instructed on the law, deliberated for less than two hours, found defendant guilty as charged and found true the weapon enhancement. Defendant admitted the prior strike and prior serious felony allegations.

Before sentencing, defendant brought a Romero motion to dismiss his prior strike conviction.*fn1 The court denied the Romero and imposed a state prison term of 14 years to life (Pen. Code, §§ 664, 667, subds. (b)-(i)/1170.12) consecutive to six years -- one year for the weapon enhancement and five years for the prior serious felony enhancement (Pen. Code, §§ 12022, subd. (b)(1), 667, subd. (a).). The court imposed various fines and fees and awarded defendant 767 days of custody credits.

At the same time, having heard the evidence in the attempted murder case, the court found that defendant had violated his probation in case No. CC646684, and sentenced defendant on that case. The court imposed a state prison term of 16 years as follows: three years for the underlying crime (robbery Pen. Code, § 211), three years for a great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)), and 10 years for a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)). The court awarded defendant ...


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