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The People v. Gary R. Xavier

December 28, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GARY R. XAVIER, DEFENDANT AND APPELLANT.



(San Francisco County Super. Ct. No. 177095)

The opinion of the court was delivered by: Haerle, Acting P.J.

P. v. Xavier

CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

I. INTRODUCTION

Pursuant to a negotiated disposition whereby he pled guilty to five of seven counts charged in the information, appellant was sentenced (via a corrected sentencing hearing) to 18 years and 8 months in state prison. Pursuant to People v. Wende (1979) 25 Cal.3d 436, he now appeals and asks this court to examine the record and determine if there are any issues deserving of further briefing. Because the trial court did not grant appellant's request for a certificate of probable cause, the only issue before us is the corrected sentence imposed by the trial court. (See Pen. Code, § 1237.5*fn1 ; Cal. Rules of Court, rule 8.304(b).) We have examined the record and find no issues relating to that subject that are deserving of further briefing.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was originally charged with seven counts, five of them for robbery (§ 212.5, subd. (c)) and the other two for attempted robbery and assault. (§§ 245, subd. (a)(1); 664/212.5, subd. (c) .) Pursuant to a plea agreement, on April 12, 2002, appellant pled guilty to the five robbery counts and withdrew his prior not guilty pleas to the other two counts, which the prosecution thereupon dismissed. He also admitted an arming allegation as to two of the robbery counts and a prior strike conviction. (§§ 12022, subd. (b)(1); 667, subd. (d)(1).) At that hearing, appellant personally agreed to the waiver of all the relevant rights, personally pled guilty to the five robbery charges, and personally admitted the weapons enhancement allegations.

Pursuant to that plea agreement, on June 11, 2002, appellant was sentenced to a total of 20 years in state prison. In making this sentence, the trial court broke down the total 20-year sentence and, in so doing, noted that it was imposing a one-year sentence for each of the two admitted allegations of weapon use under section 12022, subdivision (b).

Appellant did not appeal this sentence at that time but, via two letters to the court, the Department of Corrections notified the trial judge that a mistake had been made in the sentencing of appellant, and that the additional sentence imposed for the two weapon enhancement allegations should have each been calculated at one-third the full amount, i.e., four months each, rather than as one year each.

On June 23, 2010, the court reconvened on this issue, with new counsel having been appointed by the court previously. Although appellant had requested that he be permitted to be present at the new sentencing hearing, the trial court denied that request. It then corrected the 2002 sentence imposed by reducing the sentences for the two admitted weapons enhancements to four months each, with the result being that appellant's total sentence was reduced from 20 years to 18 years and 8 months, with total pretrial confinement credit of 1886 days allowed.

Via his appointed counsel, appellant filed a notice of appeal on July 29, 2010, and another one in pro per on August 10, 2010. Via the latter, appellant personally asserted various claims of error and asked for the issuance of a certificate of probable cause. The trial ...


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