People v. Mendez CA3 ( 2021 )

Filed 8/10/21 P. v. Mendez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C091139
Plaintiff and Respondent, (Super. Ct. No. 18FE001607)
v.
AMILCAR ESCOBAR MENDEZ,
Defendant and Appellant.
Appointed counsel for defendant Amilcar Escobar Mendez filed an opening brief
setting forth the facts of the case and asking this court to review the record to determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436(Wende).) After reviewing the entire record, we affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)
FACTUAL AND PROCEDURAL BACKGROUND
Defendant drove through a red light and hit the victim, who was crossing the road
in a crosswalk at a green light, and defendant then fled in his car. Less than one mile
1
away and approximately five minutes after the impact, a police officer found defendant’s
car stopped on the side of the road. Another officer responded and conducted a driving
under the influence investigation of defendant. Defendant’s preliminary alcohol
screening tests measured his blood-alcohol concentration (BAC) at 0.195 and 0.188
percent. A blood sample subsequently taken from defendant determined that defendant’s
BAC at that time was 0.21 percent. Based on the result of the blood draw, criminalist
Allyson Avina estimated that at the time of the accident defendant’s BAC would have
been 0.24 or 0.25 percent. The victim suffered multiple serious injuries.
Defendant was charged with three felonies arising out of the collision: felony
driving under the influence causing injury by failing to stop at a red light (Veh. Code,
§ 23153, subd. (a); § 21453, subd. (a) [count one]; felony driving with a BAC of 0.08
percent or higher causing injury (Veh. Code, § 23153, subd. (b) [count two]; and felony
hit and run (Veh. Code, § 20001, subd. (a) [count three]). As to counts one and two, it
was alleged that in the commission of those offenses defendant personally inflicted great
bodily injury on the victim within the meaning of Penal Code section 12022.7,
subdivision (a),1 causing each offense to be a serious felony within the meaning of
section 1192.7, subdivision (c)(8). The information further alleged as to count two that
defendant had a BAC of 0.15 percent or higher at the time of the offense. Additionally,
as to counts one and two, the information alleged pursuant to Vehicle Code section
23566, subdivision (a), that the charged offenses occurred within 10 years of two separate
alcohol related Vehicle Code violations resulting in convictions within the meaning of
Vehicle Code sections 23546, 23548 and 23550.
Following a trial, a jury convicted defendant on all three counts. Additionally, the
jury found true the great bodily injury alleged as to counts one and two (§ 12022.7, subd.
(a)), and found true the allegation in count two that defendant drove with a BAC of 0.15
1 Undesignated statutory references are to the Penal Code.
2
percent or higher. Defendant waived jury trial on the alleged prior convictions, and the
court found that defendant had suffered both alleged prior convictions.
On January 14, 2019, the trial court sentenced defendant to the upper term of four
years on count two for driving with a BAC of 0.08 percent or higher, plus three
consecutive years for inflicting great bodily injury on the victim. The court imposed a
consecutive term of eight months (one-third the midterm) on the hit and run conviction,
count three. On count one, the court imposed the upper term of four years, plus three
consecutive years for inflicting great bodily injury, but stayed that term pursuant to
section 654. Accordingly, the aggregate term of imprisonment was seven years eight
months. The court awarded custody credits in the total amount of 124 days (108 actual
and 16 conduct). The court imposed a conviction assessment of $30 per count (Gov.
Code, § 70373), a court operations assessment of $40 per count (§ 1465.8), a $50 alcohol
abuse education and prevention penalty assessment (Veh. Code, § 23645), a $1,015
habitual traffic offender fine (§ 23566), and a restitution fine of $300 (§ 1202.4, subd.
(b)), with an additional $300 parole revocation restitution fine, which was stayed pending
successful completion of parole (§ 1202.45).
On October 2, 2019, defendant submitted a notice of appeal which the court
received but did not file because the period for filing had lapsed. On December 17, 2019,
defendant filed an ex parte motion to amend the abstract of judgment to convert $1,800 in
court-imposed fines to imprisonment, at the rate of $30 per day pursuant to section 1205,
subdivision (a). On December 26, 2019, in this court, defendant filed a request for an
order permitting the filing of a notice of appeal more than 60 days after sentencing under
the constructive filing doctrine. On December 30, 2019, the trial court denied
defendant’s motion to convert fines to custody time, noting that he had not been ordered
to pay $1,800 in fines. On January 2, 2020, defendant filed another notice of appeal,
which lists the date of the order or judgment appealed from as December 31, 2019. This
court granted defendant’s December 26, 2019 request for constructive filing of the notice
3
of appeal. Per this court’s order, defendant timely filed a notice of appeal on February
28, 2020.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts and procedural history 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 his right to file a
supplemental brief within 30 days from the date the opening brief was filed. More than
30 days have elapsed, and defendant has not filed a supplemental brief. Having
undertaken an examination of the entire record pursuant to Wende, we find no arguable
error that would result in a disposition more favorable to defendant. Accordingly, we
affirm the judgment.
DISPOSITION
The judgment is affirmed.
KRAUSE , J.
We concur:
MURRAY , Acting P. J.
HOCH , J.
4