The opinion of the court was delivered by: Hon. William B. Shubb
STIPULATION AND [PROPOSED] ORDER CONTINUING SENTENCING DATE; DECLARATION OF
COUNSEL Date: February 11, 2013 Time: 10:00 a.m.
Counsel for the government and defendant respectfully submit this Stipulation and [Proposed] Order requesting that the February 11, 2013 sentencing date in this matter be continued to April 1, 2013 at 9:30 a.m. Counsel agree and stipulate that defense counsel is engaged in a multiple defendant multiple armed robbery trial in San Francisco Superior Court and is unlikely to be available on any Monday before April 1, 2013.
Counsel further stipulate to good cause under FRCrP. 32(b)(2) to postpone the sentencing date since the Court has discretion regarding the specific sentence to be imposed and defendant desires to have the attorney who negotiated the plea agreement and prepared the sentencing memorandum represent him at sentencing.
Respectfully submitted, Date: February 4, 2013 Daniel S. McConkie Daniel S. McConkie Assistant United States Attorney Date: February 4, 2013 Brian J. Petersen Brian J. Petersen Attorney for Defendant JOSE PINEDA-MENDOZA
DECLARATION OF BRIAN J. PETERSEN
I am an attorney at law, licensed to practice before all courts of the State of California, and I have been retained by defendant herein JOSE PINEDA-MENDOZA ("defendant"). I make this declaration from facts within my own personal knowledge, except where stated on information and belief, in which case I believe the facts stated to be true. If called to testify in this matter, I could and would do so competently.
1. On November 26, 2012, defendant signed a plea agreement in open court, entered a plea of guilty and sentencing was set for February 11, 2013. The plea agreement provides that the Court may impose a sentence of between 72 and 90 months.
2. Prior to November 26, 2012, I was appointed to represent the defendant in People v. Broshuis, San Francisco Superior Court number MCN 12029624. Mr. Broshuis is charged with four separate armed robberies and has two co-defendants. On December 12, 2012, Mr. Broshuis was arraigned on the Information in Superior Court. He as well as a co-defendant requested speedy trials and the last day for trial was set for February 11, 2013.
3. We were assigned to a trial department (Dept. 13; Hon. Brendan Conroy; (415) 551-0313) this morning, and Judge Conroy has indicated that we will be in session on February 11, 2013, especially since a jury must be sworn by that date to meet the speedy trial deadlines. The Broshuis trial will likely not be in session on Fridays.
4. Since defendant entered his plea in this matter, the US Probation Department has interviewed him, reviewed materials I provided to them, prepared a draft Presentence Investigation Report (PSR), considered my objections and requests, and completed the final PSR. I have prepared and filed my own Sentencing Memorandum and I believe the matter is ready to proceed to sentencing and judgment.
5. I am seeking to delay the sentencing only long enough for me to be present. I am informed and believe that it is not possible do the sentencing in this case on a Friday, when I would not be in trial in the Broshuis case. The Broshuis trial is expected to last at least six weeks. The earliest Monday that I expect to be available is April 1, 2013.
6. AUSA Daniel McConkie and I have agreed to ask the Court to postpone the February 11, 2013 sentencing date until April 1, 2013 to accommodate my trial schedule and Mr. McConkie has authorized me to sign this Stipulation on his behalf.
7. I am informed and believe that April 1, 2013 is an available date for the Court. I declare under penalty of perjury pursuant to California law, that the foregoing is true and correct, except as to matters I allege based on information and belief, and as to those matters, I believe them to be true. This ...