People v. Valdovino CA3 ( 2015 )

Filed 3/17/15 P. v. Valdovino CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C076774
Plaintiff and Respondent, (Super. Ct. No. 10F4456)
v.
JACINTO VALDOVINO,
Defendant and Appellant.
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal. 3d 436
(Wende).
A jury convicted defendant Jacinto Valdovino of attempted murder, kidnapping,
assault with a firearm, and participation in a street gang; the jury also found true gang
enhancements and personal use of a firearm enhancements. The trial court found
defendant had a prior strike and had served a prior prison term and sentenced him to
67 years to life in prison. (People v. Valdovino (Nov. 13, 2013, C072078) [nonpub. opn.]
[at p. 2] (Valdovino).)
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On appeal, this court affirmed the judgment of conviction but reversed the true
finding on the prior strike allegation and vacated defendant’s sentence. We remanded for
a retrial on the strike allegation if the People so elected or for a new sentencing hearing if
the People did not go forward timely on the strike allegation. We also held, under
compulsion of People v. Lopez (2005) 34 Cal. 4th 1002, that the trial court must delete the
10-year gang enhancement it had imposed for attempted murder because it had already
imposed a 15-year minimum parole eligibility gang enhancement as to the same count,
and must instead impose the same 10-year enhancement (which it had previously stayed)
on the kidnapping count. (Valdovino, supra, [at p. 9].)
The evidence at trial showed that defendant, a Norteño gang member, approached
A., a Sureño gang member, at a Sureño-controlled park in Redding and started talking to
him. Defendant then told A. to tell his girlfriend to leave before both of them got shot
and showed A. a gun defendant had in his waistband. A.’s girlfriend left. At defendant’s
direction, A. followed defendant to a car that had just pulled up; the two got in, and
defendant told the driver to go. After the driver stopped at a turnout, defendant got out of
the car and ordered A. to get out, then repeatedly shot at A., hitting him in the leg.
Defendant got back into the car, which sped off. (Valdovino, supra, [at p. 1].)
On remand, the People declined to retry the strike allegation. The trial court
vacated its prior true finding on that allegation and made a new finding that the allegation
was untrue, then set a resentencing hearing.
At the resentencing hearing, the trial court imposed an indeterminate state prison
sentence of 15 years to life for attempted murder, plus a 59-year consecutive determinate
term consisting of 20 years for personally discharging a firearm as to the attempted
murder count; eight consecutive years (the upper term) for kidnapping, plus 20 years for
personally discharging a firearm, 10 years for the gang enhancement, and one year for a
prior felony. Other terms and enhancements were stayed. The court awarded defendant
830 days of presentence custody credit (722 actual days and 108 conduct days). The
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court imposed a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a suspended
parole revocation restitution fine in the same amount (Pen. Code, § 1202.45).
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. (Wende, supra, 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 elapsed, and we
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.
DISPOSITION
The judgment is affirmed.
RAYE , P. J.
We concur:
BLEASE , J.
MURRAY , J.
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