People v. Garcia CA5 ( 2022 )

Filed 10/24/22 P. v. Garcia CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084441
Plaintiff and Respondent,
(Super. Ct. No. F19902080)
v.
RICHARD GARCIA, JR., OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Fresno County. Michael G.
Idiart, Judge.
Martin Baker, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Snauffer, J.
STATEMENT OF APPEALABILITY
This is an appeal from a final judgment following a no contest plea and is based on
the sentence imposed. (Cal. Rules of Court, rule 8.304(b)(2)(B).) It is authorized by
Penal Code section 1237.1
STATEMENT OF THE CASE
Appellant Richard Garcia, Jr. was charged by an information with the following
six felony counts: attempted murder of John Doe (§§ 664/187, subd. (a); count 1);
assault with a firearm upon Ana M. (§ 245, subd. (a)(2); count 2); assault with a
semiautomatic firearm upon Ana M. (§ 245, subd. (b); count 3); assault with a firearm
upon Anthony S. (§ 245, subd. (a)(2); count 4); assault with a semiautomatic firearm
upon Anthony S. (§ 245, subd. (b); count 5); and possession of a firearm by a prohibited
person (§ 29800, subd. (a)(1); count 6). As to count 1, it was alleged that Garcia
personally discharged a firearm causing great bodily injury or death. (§ 12022.53, subd.
(d).) As to counts 2, 3, 4, and 5, it was alleged that Garcia personally used a firearm.
(§ 12022.5, subd. (a).) And as to counts 2 and 3, it was alleged that Garcia personally
inflicted great bodily injury. (§ 12022.7, subd. (a).) Each count was alleged to have been
committed on or about February 10, 2019. A prior serious felony (or “strike”) conviction
was also alleged. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
On October 27, 2021, Garcia entered into a plea agreement whereby he pled no
contest to assault with a firearm (§ 245, subd. (b); count 5), and admitted the
enhancements for a prior “strike” conviction and firearm use, with the understanding that
he would be sentenced to a maximum (or “lid”) of 15 years state prison and he would be
free to argue at sentencing for a lesser sentence. Garcia stipulated that there was a factual
basis for his plea.
1 All statutory references are to the Penal Code unless otherwise stated.
2.
On March 30, 2022, Garcia’s counsel filed a Romero2 motion, requesting his prior
“strike” be stricken.
On May 26, 2022, at the sentencing hearing the trial court noted that the maximum
possible prison term (but for the stipulated 15-year “lid”) was 28 years and, while
acknowledging that “there was an element of imperfect self-defense here,” the court
nonetheless found that it did not rise to a level that mitigated below 15 years. In addition,
the trial court stated it did not believe that the Romero motion “should be granted because
this is a crime of violence that was involving violent conduct.” Accordingly, the court
imposed the middle term of 12 years (six years doubled due to the prior “strike”
conviction), plus the low term of three years for the firearm use enhancement to be served
consecutively, for a total aggregate term of 15 years state prison. Garcia was awarded
1178 actual days credit and 176 days of conduct credit, for a total of 1354 days.
(§ 2933.1.)
On June 3, 2022, Garcia filed a timely notice of appeal.
STATEMENT OF FACTS 3
On February 10, 2019, Garcia was involved in an altercation in the parking lot of
an apartment complex in Fresno, California. During that altercation, Garcia brandished a
firearm at two men who were assaulting him, causing them to flee. As they fled, Garcia
fired one round in their direction. Garcia then brandished his firearm at an intervening
bystander before firing two more rounds toward the fleeing men. One of the rounds
Garcia fired struck Ana M., causing her to suffer a collapsed lung.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3 The facts are drawn from the probation officer’s report, and the transcript of the
preliminary hearing on August 4-5, 2021.
3.
APPELLATE COURT REVIEW
Garcia’s appointed appellate counsel has filed an opening brief that summarizes
the pertinent facts, raises no issues, and requests this court to review the record
independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also
includes the declaration of appellate counsel indicating Garcia was advised he could file
his own brief with this court. By letter on September 6, 2022, we invited Garcia to
submit additional briefing. To date, he has not done so.
Having undertaken an examination of the entire record, we find no evidence of
ineffective assistance of counsel or any other arguable error that would result in a
disposition more favorable to Garcia.
DISPOSITION
The judgment is affirmed.
4.