IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
January 26, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MARIO GARCIA CASTANEDA, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. MF032111A & MF032581A)
The opinion of the court was delivered by: Blease, Acting P. J.
P. v. Castaneda
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On November 8, 2009, Larry Redd was driving his truck to Manteca, California when he was "waved . . . down" by defendant Mario Garcia Castaneda. Redd pulled into a nearby gas station and stopped his truck near the gas pump. Defendant followed, parking his car in front of Redd's.
Defendant then got out of his car and, according to Redd, put a gun in Redd's face, told Redd to "reach for it," then struck Redd in the face with the gun. According to Redd, defendant also said, "I should kill you. You trying to set me up. You know, you set me up to be killed," then walked toward the front of Redd's truck.
Redd put his truck in reverse and drove to his mother's house. At his mother's house, Redd told his wife and mother what happened at the gas station. Shortly thereafter, Redd returned to the gas station along with his wife.
Back at the gas station, Redd asked the cashier if there were surveillance cameras; she said there were none. Redd also asked the cashier if she had seen the incident; she had not. Redd then asked her to call the police but the cashier refused. Redd called the police from a cell phone.
Police officers, including Officer Shawn Cavin, arrived at the gas station a short time later. The cashier gave Officer Cavin a cell phone that was found by another customer. Upon inspection, the phone turned out to be defendant's.
Two days later, on November 10, 2009, City of Manteca Police Officer John Moody was on patrol when he saw defendant standing in the street near a parked car. A "be on the lookout" had issued for defendant, so Officer Moody approached him and asked his name. Defendant said, "my name is Eric," and began running from Officer Moody. Officer Moody ran after him, yelling for defendant to stop.
Running behind defendant, Officer Moody saw defendant take a gun out of his pocket and toss it in a side yard. According to Officer Moody, he also saw defendant toss a baggie of what later proved to be methamphetamine into someone's back yard. Additional officers soon arrived and set up a perimeter; trapped, defendant ran into a garage through the side door and locked himself in. The police quickly opened the garage with the remote garage door opener and found defendant lying face down on the garage floor. Defendant was arrested and taken into custody.
Defendant was subsequently charged with assault with a firearm (Pen. Code, § 245, subd. (a)(5) - count I), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) - count II), making criminal threats (Pen. Code, § 422 - count III), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1) - count IV), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a) - count V), resisting or obstructing an officer (Pen. Code, § 148 - count VI), and giving false information to a police officer (Pen. Code, § 148.9 subd. (a) - count VII). It was further alleged, as to counts I and II that, during the commission of those crimes, defendant personally used a firearm.
Defendant pleaded not guilty to all the charges and sentencing enhancement allegations. Jury trial began in February 2010. Following the close of the prosecution's case, defendant moved, pursuant to Penal Code section 1118.1, for a verdict of acquittal on counts II, V, and VII. The court granted defendant's motion as to count VII, finding the prosecution failed to prove defendant was "detained" when he told Officer Moody his name was "Eric." The court denied defendant's motion as to the other two counts.
Defendant then testified in his own defense. Defendant denied putting a gun in Redd's face on November 8, and denied hitting him with a gun. In fact, defendant said there was no argument at all. Defendant further testified that when he ran from police on November 10, 2009, it was because he knew he had violated his probation in an unrelated matter by failing to check in with his probation officer, not because he believed he would be arrested for assaulting Redd. Defendant denied tossing the gun and the methamphetamine.
After deliberating, the jury found defendant guilty only as to counts IV and VI, being a felon in possession and resisting an officer. The jury found defendant not guilty on the remaining counts.
Defendant was later sentenced to the upper term of three years in state prison on the charge of being a felon in possession of a firearm and a concurrent one-year jail term sentenced for the misdemeanor charge of resisting or obstructing an officer. He was also awarded 308 days of credit.
For his felony conviction, defendant was ordered to pay a $200 restitution fine (Pen. Code, §1202.4) and a second $200 restitution fine was stayed pending defendant's successful completion of parole (Pen. Code, § 1202.45). The court also ordered defendant to pay a $20 administrative surcharge (Pen. Code, § 1202.4), a $30 court security fee (Pen. Code, § 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373).
For the misdemeanor conviction, defendant was ordered to pay a $100 restitution fine (Pen. Code, § 1202.4), a $10 administrative surcharge (Pen. Code, § 1202.4), a $30 court security fee (Pen. Code, § 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373).
For defendant's probation violation in San Joaquin County Case no. MF032111A, his probation was revoked and he was sentenced to a consecutive term of eight months in state prison. He was then awarded 477 days of credit toward his sentence.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed and we have received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. However, there are two clerical errors in the abstract of judgment and one error in the judgment itself.
First, the abstract indicates the trial court imposed a $30 court security fee for defendant's conviction in case No. MF032111A rather than the $20 court security fee the court actually imposed when defendant was convicted in June 2009. The increase in the court security fee from $20 to $30 did not occur until July 2009. The abstract should be corrected to reflect the judgment pronounced by the court. (See People v. Rowland (1988) 206 Cal.App.3d 119, 123-124.)
Second, the abstract indicates that in case No. MF032111A, the trial court imposed a $200 restitution fine and stayed a $200 parole revocation fine. In fact, when defendant was initially convicted, he was ordered to pay a $220 restitution fine, and a $220 probation revocation fine was stayed pending defendant's successful completion of probation. The abstract should be corrected to reflect the $220 restitution fine. Moreover, because defendant did not successfully complete his probation, the judgment should also direct defendant to pay the $220 restitution fine ordered in case No. MF032111A, pursuant to Penal Code section 1202.44. We will correct the judgment accordingly.
The judgment in case No. MF032111A is amended to order defendant to pay $220 pursuant to Penal Code section 1202.44. The trial court is directed to correct the abstract of judgment accordingly. The trial court is further directed to correct the abstract of judgment to reflect imposition of a $20 court security fee and a $220 restitution fine in case No. MF032111A, pursuant to Penal Code section 1202.4. In all other respects, the judgment is affirmed. The court shall forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: ROBIE , J. MAURO,J.
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