People v. Cortes CA2/5 ( 2014 )


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  • Filed 9/4/14 P. v. Cortes CA2/5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
    SECOND APPELLATE DISTRICT
    DIVISION FIVE
    THE PEOPLE,                                                          B254027
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. BA414173)
    v.
    FRANCISCO JAVIER CORTES,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los Angeles County, Gail
    Ruderman Feuer, Judge. Affirmed as modified.
    John R. Mills, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
    General, Lance E. Winters, Assistant Attorney General and Robert C. Schneider, Deputy
    Attorney General, for Plaintiff and Respondent.
    I. INTRODUCTION
    A jury convicted defendant, Francisco Javier Cortes, of firearm assault (Pen.
    Code, § 245,1 subd. (a)(2)) (count 1) and false imprisonment (§ 236) (count 2). The jury
    further found true allegations defendant personally used a firearm in the commission of
    the offenses. (§ 12022.5, subd. (a).) Defendant was sentenced to 12 years in state prison
    on count 1 plus a concurrent, stayed 12-year term on count 2. We modify the oral
    pronouncement of judgment to impose a $30 court facilities assessment (Gov. Code, §
    70373, subd. (a)(1)) and a $40 court operations assessment (§ 1465.8, subd. (a)(1)) as to
    each count. We affirm the judgment in all other respects.
    II. BACKGROUND
    On July 28, 2013, defendant assaulted his girlfriend, M.M., with a loaded semi-
    automatic firearm. M.M. spoke to a firefighter paramedic. In that conversation, M.M.
    told the paramedic defendant put the gun to her head and in her mouth to keep her from
    leaving their apartment. Law enforcement officers recovered the weapon from inside the
    home. Defendant claimed he put the gun in M.M.’s mouth to prevent her from
    committing suicide. M.M. was unavailable to testify at trial; therefore, the prosecution
    introduced her preliminary hearing testimony. M.M. testified at the preliminary hearing
    that defendant choked her while they were playing. M.M. testified, “We were playing,
    but he grabbed me by the neck with both hands.” M.M. further testified, “[Defendant]
    grabbed me a little bit hard.” M.M. said she tried to leave but defendant threatened her.
    He pointed a gun at her back. She testified she was not, however, afraid.
    1   Further statutory references are to the Penal Code except where otherwise
    noted.
    2
    III. DISCUSSION
    We appointed counsel to represent defendant on appeal. After examination of the
    record, appointed appellate counsel filed a brief in which no issues were raised. Instead,
    appointed appellate counsel asked us to independently review the entire record on appeal
    pursuant to People v. Wende (1979) 
    25 Cal.3d 436
    , 441-442. (See Smith v. Robbins
    (2000) 
    528 U.S. 259
    , 278-284.) On June 11, 2014, we advised defendant he had 30 days
    within which to submit by brief or letter any contentions or argument he wished us to
    consider. No response has been received.
    We asked the parties to brief the question whether the oral pronouncement of
    judgment must be modified to impose court facilities and court operations assessments as
    to each count. The trial court orally imposed a single $30 court facilities assessment
    (Gov. Code, § 70373, subd. (a)(1)) and a single $40 court operations assessment (§
    1465.8, subd. (a)(1)). The trial court should have imposed the assessments as to each
    count (People v. Castillo (2010) 
    182 Cal.App.4th 1410
    , 1415, fn. 3 [court facilities
    assessment]; People v. Schoeb (2005) 
    132 Cal.App.4th 861
    , 865-868 [court operations
    assessment]), including count 2, which was stayed under section 654, subdivision (a)
    (People v. Sencion (2012) 
    211 Cal.App.4th 480
    , 484-485; People v. Crittle (2007) 
    154 Cal.App.4th 368
    , 370-371; see People v. Alford (2007) 
    42 Cal.4th 749
    , 758, fn. 6). The
    judgment must be modified to so provide. (People v. Sencion, supra, 211 Cal.App.4th at
    pp. 484-485; see People v. Rosales (2014) 
    222 Cal.App.4th 1254
    , 1263; People v.
    Thomas (2013) 
    214 Cal.App.4th 636
    , 641-642.) The abstract of judgment is correct in
    this regard and need not be amended. (People v. Sencion, supra, 211 Cal.App.4th at p.
    484.)
    Finally, we inadvertently requested briefing on an issue relating to the count 2
    firearm use finding. Upon further review, the briefing was unnecessary.
    3
    IV. DISPOSITION
    The oral pronouncement of judgment is modified to impose a $30 court facilities
    assessment (Gov. Code, § 70373, subd. (a)(1)) and a $40 court operations assessment
    (Pen. Code, § 1465.8, subd. (a)(1)) as to each of counts 1 and 2. The judgment is
    affirmed in all other respects.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    TURNER, P.J.
    We concur:
    KRIEGLER, J.
    MINK, J.
    Retired  Judge of the Los Angeles Superior Court, assigned by the Chief Justice
    pursuant to article VI, section 6 of the California Constitution.
    4
    

Document Info

Docket Number: B254027

Filed Date: 9/4/2014

Precedential Status: Non-Precedential

Modified Date: 10/30/2014