People v. Fermin-Garcia CA1/2 ( 2022 )

Filed 12/13/22 P. v. Fermin-Garcia CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A165374
v.
MARCO ANTONIO FERMIN- (Mendocino County
GARCIA, Super. Ct. No. 22CR00502)
Defendant and Appellant.
Defendant Marco Antonio Fermin-Garcia appeals from a judgment
following a guilty plea. Defendant’s appellate counsel has filed a brief raising
no legal issues and asking this court to independently review the record
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel informed
defendant of his right to file a supplemental brief, and counsel thereafter
advised us that defendant intended to file a supplemental brief. We granted
defendant an extension of time to file that brief and have now received notice
from counsel enclosing the original letter brief (which is in Spanish), with
counsel’s representation that he “had it professionally translated,” and
enclosing the translation.
We have completed our Wende review, conclude there are no arguable
appellate issues requiring further briefing, and affirm.
1
On the evening of February 27, 2022, Henry Babcock was inside his
residence in Ukiah, California, when he heard a knock on the door. Because
of prior thefts at his home, Babcock picked up a crowbar and walked out of
his house with it. Outside, he saw his garage door move and observed
defendant leaving his garage with two tires. Babcock confronted defendant
and asked him to put the tires down. Defendant told Babcock to hit him, but
Babcock said he did not want to, and then began to retreat. Defendant
followed him, removed a pair of bolt cutters from his backpack, and swung at
Babcock, who sustained injuries to his hand and abdomen, either from being
struck or from falling. The police arrived and arrested defendant.
On March 1, the Mendocino County District Attorney filed a complaint
charging defendant with one count of second degree robbery in violation of
Penal Code sections 211 and 212.5, subdivision (c). The complaint further
alleged that during the commission of the offense defendant personally used
a deadly weapon within the meaning of section 12022, subdivision (b)(1), and
that he had previously been convicted of two or more felonies within the
meaning of section 1203, subdivision (e)(4).
On April 20, three cases involving defendant came on for hearing: the
charged robbery felony and two misdemeanors, for petty theft and possession
of a controlled substance. Defendant was represented by counsel, Jeff Aaron.
Following the identification of counsel, the hearing began with this
colloquy:
“THE COURT: I understand that you are going to resolve your three
cases today by pleading guilty or no contest to petty theft and possession of a
controlled substance and pleading guilty to a felony charge in Case 502,
second-degree robbery.
2
“And the People are dismissing the special allegation in exchange for
the pleas?
“MR. MCMENOMEY [for the People]: Yes.
“THE COURT: Are there any promises as to sentence, Mr.
McMenomey?
“MR. MCMENOMEY: Only with respect to the misdemeanors, that
they will be run concurrent.
“THE COURT: As far as the robbery then, other than the dismissal of
the special allegations it’s an open plea?
“MR. MCMENOMEY: Correct.
“THE COURT: Mr. Fermin-Garcia, I’m holding up a felony plea form
with an explanation and waiver of rights. This form has the initials F.G. in
boxes on the right hand side of the form, and on page 6 of 7 there is a
signature with today’s date.
“Mr. Fermin-Garcia, will you confirm for me that these are your initials
and signature on the form I’m holding up?
“THE DEFENDANT: Yes.
“THE COURT: Did you thoroughly review this form with your attorney
using the services of our Spanish-language interpreter so you understand the
charge, possible defenses, and maximum consequences?
“THE DEFENDANT: Yes.
“THE COURT: Do you understand that by pleading guilty or no
contest to robbery, the maximum sentence the Court could impose is five
years in the California Department of Corrections?
“THE DEFENDANT: Yes.
“THE COURT: Do you also understand that by pleading to that
robbery charge it would be considered a strike for sentencing purposes?
3
“THE DEFENDANT: Yes.
“THE COURT: Do you have any questions for your attorney or the
Court before I take your pleas in these matters then, sir?
“THE DEFENDANT: No.”
The court then inquired of defendant as to his understanding about
credits and possible deportation status, as to both of which defendant
answered he understood.
And the hearing concluded with the following:
“THE COURT: With all of those admonitions in place and with your
rights in mind and after discussing this matter with your attorney, what is
your plea to the violation of Penal Code section 211, second-degree robbery as
alleged in case ending 502?
“THE DEFENDANT: No contest.
“THE COURT: And to the charge of petty theft from a merchant on
January 21st of this year as alleged in Count 1 in case ending 497, what it
your plea?
“THE DEFENDANT: No contest.
“THE COURT: And then finally, to the charge of possession of a
controlled substance on February 11th of this year as alleged in Count 1 in
case ending 501, what is your plea?
“THE DEFENDANT: No contest.
“THE COURT: Mr. Aaron, do you join in Mr. Fermin-Garcia’s waiver of
rights and his entries of plea?
“MR. AARON [for defendant]: Yes, Your Honor.
“THE COURT: As to the misdemeanors, do you stipulate that there’s a
factual basis for those pleas?
“MR. AARON: Yes, Your Honor.
4
“THE COURT: Mr. McMenomey, for the felony plea?
“MR. MCMENOMEY: On February 27th of this year, in the county of
Mendocino, by means of force or fear the defendant took personal property
from the victim, to wit, some tires.
“THE COURT: Mr. Aaron, do you want to add or subtract anything
from that statement of fact?
“MR. AARON: No, Your Honor.
“THE COURT: I’ll sign the order finding, Mr. Fermin-Garcia, that you
are making a knowing and intelligent waiver of rights, that you understand
the charges, possible defenses, and maximum consequences, and that there is
a factual basis for each of your please in each of these three cases. I’ll find
you guilty of those three charges.”
On May 18, the court sentenced defendant to the middle term of three
years in prison.
On May 24, defendant filed a notice of appeal. He did not request a
certificate of probable cause.
As noted, defendant’s counsel provided us with defendant’s
supplemental letter brief, which provides in its entirety as follows:
“Hello Attorney, I received your letter dated November 14. I am
writing this letter to the court to let them know first of all it was not fair for
me to have court on video calls. I could not listen to anything the judge told
me and secondly, I felt it was unjust that they did not give me probation by
denying probation. In the investigation report it did not show that I had hit
the person they say I hit because I never hit him then they give me 3 years at
85% that supposedly my case was violent. In the video call from the court
they did not let me speak and did not let me give my own testimony. I feel
the time and the strike are unjust. I also do not agree that my lawyer asked
5
for 2 years and the Judge gave me 3 years because of my bad record. I would
like them to review my case again if possible.
“That’s all, thanks for your time.”
Defendant’s no contest plea and failure to obtain a certificate of
probable cause limit the potential scope of his appeal to “grounds that do not
affect the validity of the plea or admission” or “[t]he denial of a motion to
suppress evidence under Penal Code section 1538.5.” (Cal. Rules of Court,
rule 8.304(b)(2); see Pen. Code, § 1237.5.)
As set forth above, our review of the record reveals no arguable issues,
let alone issues cognizable without a certificate of probable cause: defendant
was represented by counsel; defendant was properly advised before the plea;
defendant acknowledged and waived his rights; defendant personally entered
the plea; and there was a factual basis for it.
The judgment is affirmed.
6
_________________________
Richman, J.
We concur:
_________________________
Stewart, P.J.
_________________________
Van Aken, J. *
People v. Fermin-Garcia (A165374)
*Judge of the San Francisco Superior Court, Judge Christine Van
Aken, sitting as assigned by the Chief Justice pursuant to article VI, section
6 of the California Constitution.
7