P. v. Orozco CA6 ( 2013 )

Filed 3/21/13 P. v. Orozco CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H037788
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS100981)
v.
FRANCISCO JAVIER OROZCO,
Defendant and Appellant.
Defendant Francisco Javier Orozco appeals after pleading no contest to unlawfully
driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), admitting that the offense
was committed for the benefit of a criminal street gang (Pen. Code, § 186.22,
subd. (b)(1))1 and admitting that he had a prior strike within the meaning of the Three
Strikes law (§ 1170.12, subd. (c)(1)). He was sentenced to a nine-year prison term.
On appeal, defendant’s appointed counsel has filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 that states the case and facts, but raises no issue. We
notified defendant of his right to submit written argument on his own behalf within
30 days. The 30–day period has elapsed and we have received no response from
defendant.
1
All further statutory references are to the Penal Code unless otherwise indicated.
Pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006)
40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme
Court’s direction in People v. Kelly, supra, at page 110, we provide a brief description of
the facts and the procedural history of the case.2
FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant’s Arrest
On March 23, 2010, Officer Anthony Parker saw defendant driving a gray Honda
Civic. Officer Parker was in uniform, driving a marked patrol car. He turned on his
lights and siren to initiate a traffic stop, but defendant did not stop. During the
subsequent pursuit, defendant ran stop signs, drove at speeds over the posted speed limits,
and crossed the center line. Eventually, defendant’s car hit a fence at an apartment
complex. He jumped out of the car and ran, but he was apprehended 15 to 20 minutes
later.
Defendant was not the owner of the Honda. The vehicle’s owner, who did not
know defendant, had last seen the Honda the night before and had not been aware the
vehicle was gone. Inside the Honda, the police found a key ring with five “shaved keys,”
which are used to steal cars. The police also found cell phones, CD cases, luggage bags,
a bag of tools, and a backpack containing a stereo. These items had been taken during
burglaries of a second victim’s home and vehicle.
B. Gang Evidence
Sureños are one of the primary gangs in Monterey County. Sureños identify with
the number 13, the letter M, and the color blue. They consider Norteños to be their
enemies. The Sureños’ primary activities are vehicle theft, homicide, assault, burglary,
possession, and evasion. In 2007, a Sureño was convicted of carrying a concealed
2
The factual summary is based on the transcript of the preliminary hearing.
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weapon, with a gang enhancement. In 2008, another Sureño was convicted of robbery,
with a gang enhancement.
After his arrest, defendant was housed in an “active Sureno pod” at the jail.
During a screening, defendant said he was a gang member, that his enemies are Norteños,
and that he had no problems in the Sureño pod. Defendant had 12 prior police contacts
during which he had admitted being a Sureño gang member, had been in the company of
Sureño gang members, or had Sureño gang indicia. Defendant has Sureño tattoos. In
2004, he pleaded guilty to vehicle theft and admitted a gang enhancement.
Officer Parker believed defendant committed his crimes for the benefit of the
Sureño gang. Evading an officer allows the gang member to continue committing crimes
and gives the gang member the respect of the gang. Stolen vehicles are used by Sureño
gang members to commit more crimes. Stolen property can benefit the gang because it
can be sold to finance the purchase of firearms or to bail out other gang members.
C. Charges, Plea, and Sentence
Defendant was charged, by information, with unlawfully driving or taking a
vehicle (count 1; Veh. Code, § 10851, subd. (a)), evading an officer (count 2; Veh. Code,
§ 2800.2, subd. (a)), possession of burglar’s tools (count 3; § 466), receiving stolen
property (count 4; § 496, subd. (a)), and hit and run driving (count 5; Veh. Code,
§ 20002, subd. (a)). The information alleged that counts 1-4 were committed for the
benefit of a criminal street gang. (§ 186.22, subds. (b)(1) & (d).) The information further
alleged that defendant had a prior conviction of unlawfully driving or taking a vehicle
(§ 666.5, subd. (a)), which qualified as a strike (§ 1170.12, subd. (c)(1)), and that he had
served a prior prison term (§ 667.5, subd. (b)).
On May 26, 2011, defendant pleaded no contest to unlawfully driving or taking a
vehicle (count 1; Veh. Code, § 10851, subd. (a)), admitted that the offense was
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and admitted
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that he had a prior strike (§1170.12, subd. (c)(1)). The remaining counts and the
section 666.5 allegation were dismissed.
Pursuant to stipulation, the trial court imposed a nine-year prison sentence. It
imposed the three-year upper term for the vehicle theft, doubled that to six years under
the Three Strikes law, and added a three-year term for the gang allegation. The trial court
also ordered defendant to pay a $1,800 restitution fine (§ 1202.4, subd. (b)), a $40 court
security fee (former § 1465.8, subd. (a)(1); see Stats. 2011, ch. 10, § 8), a $30 criminal
conviction assessment (Gov. Code, § 70373), and stayed a $1,800 parole revocation fine
(§ 1202.45).3
DISCUSSION
Having carefully reviewed the entire record, we conclude that there are no
arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.)
3
The trial court also orally imposed a $4 “vehicle traffic fee.” The minutes
reflect that the fee was imposed pursuant to Government Code section 76000.10,
subdivision (c)(1), which designates it as a “penalty” for any conviction of a Vehicle
Code offense. The $4 penalty is not reflected in the abstract of judgment. This penalty
did not become effective until January 1, 2011, after defendant committed the vehicle
theft. (Stats. 2010, ch. 547, § 2.) We assume that imposition of the penalty would
implicate ex post facto concerns and thus that it was properly omitted from the abstract
of judgment. (See People v. Batman (2008) 159 Cal.App.4th 587, 591 [because DNA
penalty assessment imposed under Government Code section 76104.6 is “explicitly
designated a penalty,” “it is a punitive ex post facto law with respect to offenses
committed prior to its effective date”].)
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DISPOSITION
The judgment is affirmed.
____________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
_________________________________
ELIA, ACTING P.J.
_________________________________
MÁRQUEZ, J.
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