People v. Manzano CA4/1

Filed 1/24/22 P. v. Manzano CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078762
Plaintiff and Respondent,
v. (Super. Ct. No. CF-11489)
FRANCISCO MANZANO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County, Poli
Flores, Jr., Judge. Affirmed.
Matthew A. Lopas, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2004, a jury found Francisco Manzano guilty of two counts of
criminal threats (Pen. Code,1 § 422), and one count of possession of a firearm
by a felon (§ 12021, subd. (a)(1)). Manzano was acquitted of the remaining
1 All further statutory references are to the Penal Code.
counts and the jury found not true an alleged enhancement for the personal
use of a firearm.
In a bifurcated trial, the court found true two prior strike convictions
(§ 667, subds. (b)-(i)).
The court reduced the criminal threat convictions to misdemeanor.
Manzano was sentenced to an indeterminate term of 25 years to life in prison
for possession of a firearm by a felon.
Manzano appealed and this court affirmed the judgment in an
unpublished opinion. (People v. Manzano, D044688 (Aug. 2, 2005).)
In 2021, Manzano filed a petition to modify his three strikes sentence
under section 1170.126. Thereafter, the court appointed counsel, received
briefing, and heard testimony and argument. At the conclusion of the
hearing, the court denied the petition for resentencing.
Manzano filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Manzano the opportunity
to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
Appellate counsel has provided a statement of facts taken from our
prior opinion. We will adopt that statement of facts for background
information.
“On June 9, 2002, at approximately 3:00 p.m., Mark C. (Mark), who
was then nine years old, was home alone in the house in which he lived with
his mother, Claudia M. (Claudia) and his siblings. Mark received a telephone
call from Manzano. Manzano is Claudia’s ex-husband and he did not live
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with Claudia’s family. Manzano told Mark he was coming over to the house.
Manzano sounded angry. Mark did not want Manzano to come over because
he was afraid of Manzano. Later, Mark heard banging at the front door.
Mark looked out the window and saw Manzano, who was sweating and
carrying a gun. Mark was scared, but opened the door.
“Once inside the house, Manzano went to Claudia’s room. Manzano
began to rip up photographs and ransack the room. Seeing the destruction,
Mark began to cry. Manzano angrily told Mark to go to his room. After Mark
had gone to his room, Manzano came into Mark’s room. Manzano began to
cry and told Mark he was going to kill Mark’s mother and that if she did not
return home, he would kill Mark. Mark was stunned and scared. He
continued to cry. Manzano went back into Claudia’s room and took several
pieces of Claudia’s jewelry.
“About 10 to 20 minutes after Manzano arrived at the house, Mark’s
brother Michael M. (Michael) and his friend George C. (George) came to the
house. Michael saw that Manzano had a gun in the waistband of his pants.
Michael talked with Mark, who told Michael about Manzano’s threats.
Michael saw Manzano take a drink of alcohol and he also smelled alcohol on
Manzano’s breath. Michael saw Manzano loading the gun with bullets taken
from his pocket. Michael was scared. He and George left the house. Michael
and George went to George’s house, where they called the police.
“In the meantime, at Claudia’s house, Manzano asked Mark if he
wanted to go out and get something to eat. Mark did not want to go with
Manzano but agreed to do so because he thought he could get help while the
two were out in public. Before they left the house, Manzano ripped the
telephone from the wall. As they were leaving, Manzano saw a car parked
nearby and thought it was the police. Manzano rushed back inside the house
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and ripped a screen from the window of a bedroom at the east side of the
house. Manzano jumped out the window and called to Mark to come with
him. As he was fleeing, Manzano jumped over a fence and again called for
Mark to come with him.
“Officers Armando Orozco and Francisco Uriarte of the Calexico Police
Department and several other officers went to Claudia’s house in response to
a telephone call about a man with a gun. While searching for Manzano
outside Claudia’s house, Uriarte saw Manzano holding Mark’s hand. Uriarte
yelled, ‘He’s over here.’ Manzano released Mark and ran back toward the
house. Orozco drew his gun, pointed it at Manzano and told him to halt.
Manzano continued to flee. He was eventually captured and arrested by
Uriarte and several other officers. The police searched Manzano and found
several pieces of Claudia’s jewelry in his pocket. The police also found a
loaded gun near Claudia’s house. During the ride to the police station,
Manzano continually threatened to harm Orozco and his family.
“[¶] . . . [¶]
“Manzano testified at trial. He admitted that on the day in question,
he began drinking at 10:00 a.m., and that he went to Claudia’s house
sometime after 2:00 that afternoon. He said he ransacked Claudia’s room
because he was jealous that Claudia was seeing another man. He denied
having a gun or threatening Mark. He admitted making numerous threats to
Officer Orozco after he was arrested.”
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review of
the record, and in compliance with Anders v. California (1967) 386 U.S. 7384
(Anders), counsel had identified possible issues that were considered in
evaluating the potential merits of this appeal.
1. Whether the jury verdicts and the not true findings on the firearm
use enhancement precluded a finding by the trial court of ineligibility for
resentencing under section 1170.126.
2. Whether the court erred in relying on the preliminary hearing
transcript rather than the entire record of conviction.
3. Whether the trial court applied the correct standard of proof beyond
a reasonable doubt when determining the presence of disqualifying factors.
We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Manzano on this appeal.
DISPOSITION
The order denying Manzano’s petition for resentencing under
section 1170.126 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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