People v. Espinoza CA2/5 ( 2016 )

Filed 8/22/16 P. v. Espinoza 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B266084
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA107370)
v.
JAVIER FRANK ESPINOZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F.
Marrs, Judge. Affirmed as modified with directions.
Donna Ford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and Scott A. Taryle,
Deputy Attorney General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant, Javier Frank Espinoza, of resisting an executive
officer. (Pen. Code, § 69.1) Defendant admitted he had sustained two prior serious
felony convictions within the meaning of sections 667, subdivision (d), and 1170.12,
subdivision (b). The trial court sentenced defendant to six years in state prison. We
modify defendant’s presentence conduct credit, correct errors in the abstract of judgment
and affirm the judgment as modified.
II. DISCUSSION
A. The Wende Brief
We appointed counsel to represent defendant on appeal. After examining the
record, appointed appellate counsel filed an “Opening Brief” in which no issues were
raised. Instead, appointed appellate counsel requested this court independently review
the entire record on appeal pursuant to People v. Wende (1979) 25 Cal. 3d 436, 441. (See
Smith v. Robbins (2000) 528 U.S. 259, 277-284.) On March 7, 2016, we advised
defendant that he had 30 days within which to personally submit any contentions or
arguments he wished us to consider. On April 20, 2016, we granted defendant 20
additional days to respond.
B. Defendant’s Contentions
In a brief filed on May 12, 2016, defendant argues there was insufficient evidence
of resisting. Our Supreme Court has held there are two separate ways a violation of
section 69 can be committed: “‘The first is attempting by threats or violence to deter or
prevent an officer from performing a duty imposed by law; the second is resisting by
force or violence an officer in the performance of his or her duty.’ (In re Manuel G.
(1997) 16 Cal. 4th 805, 814.)” (People v. Smith (2013) 57 Cal. 4th 232, 240.) Here, two
police officers responded to a domestic disturbance call. Upon their arrival, defendant:
shouted obscenities; took a fighting stance with clenched fists; repeatedly challenged the
officers to a fight, violently pulled away from and tried to strike the officers; and resisted
1 Further statutory references are to the Penal Code unless otherwise noted.
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being handcuffed by crossing his arms underneath his prone body and trying to get up. It
took several officers to subdue defendant. This was substantial evidence defendant
resisted by force or violence.
Defendant also challenges the trial court’s refusal to strike his prior serious felony
convictions. We find no abuse of discretion. (People v. Carmony (2004) 33 Cal. 4th 367,
376; People v. Solis (2015) 232 Cal. App. 4th 1108, 1124-1125.) In the present case,
defendant violently resisted police officers. Defendant’s prior serious felony convictions
were for robbery of a person using an automated teller machine and attempted robbery.
Defendant has a long criminal history beginning as a juvenile in 1993. Burglary and
dangerous weapon possession petitions were sustained in 1994. In 1995, defendant was
found in violation of juvenile probation. In 1997, defendant was convicted of a robbery
committed for the benefit of a gang. He was sentenced to two years in state prison. In
1998, defendant was convicted of attempted robbery and returned to state prison. He was
also found in violation of parole. Defendant has not shown the trial court’s decision was
irrational or arbitrary. He has not shown he falls outside the sentencing scheme. (People
v. Carmony, supra, 33 Cal.4th at pp. 376-378; People v. Solis, supra, 232 Cal.App.4th at
pp. 1124-1125; compare People v. Vargas (2014) 59 Cal. 4th 635, 641-649.)
C. Presentence Conduct Credit
By letter dated February 24, 2016, appointed appellate counsel has asked the trial
court to correct defendant’s presentence credit award. The trial court gave defendant
credit for 326 days in custody plus 65 days for good conduct. Defendant’s appointed
appellate counsel has asked the trial court to correct its sentence and award defendant 326
days for good conduct. We agree that defendant’s judgment must be modified and the
abstract of judgment amended to reflect 326 days of conduct credit. This is because, as
the Court of Appeal observed in People v. Verba (2012) 210 Cal. App. 4th 991, 993:
“Defendants who committed their crimes on or after October 1, 2011, are eligible for
presentence conduct credits calculated on the basis of two days of conduct credit for
every two days of actual custody. (. . . § 4019, subds. (b), (c) & (f).)” (Fn. omitted; see
People v. Brown (2012) 54 Cal. 4th 314, 322, fn. 11.)
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D. The Abstract of Judgment
We asked the parties to brief the question whether the abstract of judgment
erroneously reflects a $300 restitution fine (§ 1202.4, subd. (b)(1)) and a $300 postrelease
community supervision revocation restitution fine. (§ 1202.45.) The trial court imposed
an $1,800 restitution fine (§ 1202.4, subd. (b)(1)) and an $1,800 postrelease community
supervision revocation restitution fine. (§ 1202.45, subd. (b).) The abstract of judgment
must be corrected to so reflect. (People v. Butler (2016) 243 Cal. App. 4th 1346, 1352;
People v. Preston (2015) 239 Cal. App. 4th 415, 430.)
III. DISPOSITION
The judgment is modified to reflect 326 days of presentence conduct credit. Upon
remittitur issuance, the clerk of the superior court must modify the abstract of judgment
to so reflect. In addition, the abstract of judgment must be modified to show an $1,800
restitution fine (§ 1202.4, subd. (b)(1)) and an $1,800 postrelease community supervision
revocation restitution fine. (§ 1202.45, subd. (b).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
KRIEGLER, J.
BAKER, J.
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