People v. Cabrera CA5

Filed 5/16/16 P. v. Cabrera CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F069701
Plaintiff and Respondent,
(Super. Ct. Nos. VCF260829A,
v. VCF247612)
ADRIAN ESPINOZA CABRERA,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano
Saucedo, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P.J., Detjen, J. and Peña, J.
In case No. VCF247612, appellant Adrian Espinoza Cabrera pled no contest to
dissuading a witness (count 1/Pen. Code, § 136.1, subd. (c)(1))1 and misdemeanor
making criminal threats (count 5/§ 422). In case No. VCF260829A, he pled no contest to
loansharking (count 1/Civ. Code, § 1916-3, subd. (b)), extortion (count 3/§ 520), and
inducing a minor to commit a felony (count 5/§ 653j, subd. (a)). Following independent
review of the record pursuant to People v. Wende (1979) 25 Cal. 3d 436, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Case No. VCF247612
On the evening of November 14, 2010, Cabrera and two armed suspects knocked
on the door of the house where J.H. and B.T. lived and called out the name “Pedro.”
When J.H. pulled back the curtain on a window to look outside, Cabrera struck him on
the forehead with the butt of a shotgun through the window screen. Cabrera then told
J.H., “Come out. I’m go[ing to] kill you and your whole family.” While J.H. ran to the
kitchen to get a knife, Cabrera broke open the front door. B.T. told Cabrera, “Please[,] I
have my babies.” The two other suspects then broke the front window and Cabrera fled
with them in a car.
Cabrera was arrested on November 15, 2010.
On July 15, 2011, J.H. was in custody on an unrelated matter when he testified at
Cabrera’s preliminary hearing. As J.H. was being transported back to jail in the same van
as Cabrera, Cabrera told J.H. that he was going to have J.H.’s wife raped and his family
killed if J.H. continued with his testimony. Cabrera then sat down with two subjects and
told them in Spanish that he would pay them to harm J.H.
On December 19, 2011, the district attorney filed a first amended information in
case No. VCF247612, charging Cabrera with two counts of dissuading a witness (counts
1, 2/§ 136.1, subd. (c)(1)); threatening a witness (counts 3, 4/§140, subd. (a)); making
1 All further statutory references are to the Penal Code, unless otherwise indicated.
2
criminal threats (counts 5, 6/§ 422); misdemeanor vandalism (count 7/§ 594, subd. (a));
misdemeanor cruelty to a child (counts 8, 9/§ 273a, subd. (b)); and battery (count 10/
§ 242).
Case No. VCF260829A
In 2009, Cabrera lent Leonel Herrera $4,000 to open a business and charged him
10 percent interest per month, which translated to a monthly interest-only payment of
$400. The loan did not have an end date and required a monthly interest payment until
Herrera was able to pay off the $4,000 principal in one lump sum.
Around October 15, 2011, after having paid Cabrera approximately $10,000 on the
loan, Herrera stopped making the payments. Herrera and his family then began receiving
calls from Cabrera’s wife Sandra Cisneros, his brother Gustavo Cabrera (Gustavo), and
Cabrera’s fourteen-year-old son demanding payment of the interest on the loan. Herrera
took the calls as threats because the callers were angry, he had seen Cabrera physically
assault people, and Cabrera knew Herrera’s family.
On November 7 or 8, 2011, Herrera paid the $4,000 principal amount to Cabrera’s
son.
Ramon and Elida Rodriguez obtained a $2,000 business loan from Cabrera in
September 2010, and also took over a $3,000 loan Cabrera had made to one of their sons
in June 2010. They paid Cabrera a total of $1,100 a month in interest on both loans.
Ramon estimated that he had paid $17,400 in interest on the loans.
Cabrera also lent $3,000 to Juan Soriano in July 2006, at a rate that began at seven
percent interest per month and increased with time. In February 2011, Cabrera
threatened to kill Soriano after he stopped paying interest on the loan.
In March 2010, Cabrera lent Soriano’s son $3,000 at 12 percent interest per
month.
3
In July 2007, Cabrera lent Alberto Soriano $2,000 at a monthly interest rate of 12
percent. In January 2011, Cabrera lent Alberto an additional $1,000 at 12 percent interest
per month.
On January 2, 2014, the district attorney filed a first amended information
charging Cabrera with five counts of loansharking (counts 1, 2, 6, 8, 10/Civ. Code,
§ 1916-3, subd. (b)); four counts of extortion (counts 3, 4, 7, 12/§ 520); and one count of
inducing a minor to commit a felony (count 5/§ 653j, subd. (a)).
Change of Plea and Sentencing
On January 13, 2014, after the prosecutor amended count 5 in case No.
VCF247612 to allege a misdemeanor charge of making criminal threats, Cabrera entered
his no contest plea in both cases in exchange for a stipulated five-year prison term, the
dismissal of the remaining counts, and the dismissal of an unrelated case.
On March 25, 2014, the court granted Cabrera’s request to substitute retained
counsel.
Around April 21, 2014, Cabrera’s new defense counsel filed a motion to withdraw
Cabrera’s plea, alleging the trial court failed to “properly obtain and find” a factual basis
for Cabrera’s pleas and that he was not given adequate time to consider the plea offer.
On May 13, 2014, the court denied Cabrera’s motion.
On May 21, 2014, the court sentenced Cabrera to: the midterm of five years on
his inducing a minor to commit a felony conviction, concurrent terms on his remaining
felony convictions, and no time on his misdemeanor convictions for making criminal
threats and cruelty to a child.
Cabrera’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende, supra, 25 Cal. 3d 436.) Cabrera has not responded to this
court’s invitation to submit additional briefing.
4
Following an independent review of the record we find that no reasonably
arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
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