People v. Sanchez CA5

Filed 6/15/16 P. v. Sanchez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F070853
Plaintiff and Respondent,
(Super. Ct. No. F12904103)
v.
EDUARDO RAMON SANCHEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge.
James Bisnow, 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 Gomes, Acting P.J., Detjen, J. and Peña, J.
INTRODUCTION
Pursuant to a plea agreement, appellant Eduardo Ramon Sanchez pled guilty to
numerous offenses including assault with a firearm, resisting an executive officer with
the use of a firearm, possession of a firearm by a felon, and driving and unlawfully taking
a vehicle. As a part of the plea agreement, Sanchez agreed to a stipulated sentence of 28
years and eight months in prison. Sanchez was sentenced on January 14, 2015. Sanchez
appealed and did not seek a certificate of probable cause. Appellate counsel filed a brief
pursuant to People v. Wende (1979) 25 Cal. 3d 436. We affirm the convictions and
remand for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
On June 3, 2013, Sanchez was charged with attempted murder of a peace officer
engaged in the performance of his duties, a violation of Penal Code1 sections 187,
subdivision (a) and 664; assault with a firearm upon a peace officer, in violation of
section 245, subdivision (d)(1); resisting a peace officer, in violation of section 69;
receiving stolen property, a violation of section 496d, subdivision (a); being a felon in
possession of a firearm, a violation of section 29800, subdivision (a)(1); and unlawfully
taking and driving a vehicle, in violation of Vehicle Code section 10851, subdivision (a).
The information also alleged that with respect to the attempted murder and assault
charges, Sanchez personally used and intentionally discharged a firearm in violation of
section 12022.53, subdivision (c); in the commission of the section 69 offense, he
personally used a firearm in violation of section 12022.5, subdivision (a). It also was
alleged that Sanchez had served a prior prison term, in violation of section 667.5,
subdivision (b).
Sanchez pled not guilty as to all counts and denied all enhancements, including the
prior prison term allegation. The public defender represented Sanchez. At the
1 References to code sections are to the Penal Code unless otherwise specified.
2.
preliminary hearing, the public defender opined that Sanchez was facing a possible prison
sentence of 32 years to life if convicted.
Thereafter, on May 24, 2013, Sanchez brought a motion pursuant to People v.
Marsden (1970) 2 Cal. 3d 118 (Marsden) for substitution of counsel. The trial court held
a Marsden hearing to address Sanchez’s concerns. Ultimately, the trial court denied the
motion.
Sanchez brought a second Marsden motion on January 23, 2014. Once again, the
trial court held a Marsden hearing to address Sanchez’s concerns. The second Marsden
motion also was denied.
On September 25, 2014, Sanchez entered into a plea agreement. Pursuant to the
plea agreement, Sanchez pled guilty to one count each of violating section 245,
subdivision (d)(1); section 69; section 29800, subdivision (a)(1); and Vehicle Code
section 10851, subdivision (a). He also admitted one section 12022.53, subdivision (c)
enhancement and one section 12022.5, subdivision (a) enhancement. He agreed to a
stipulated term of imprisonment of 28 years and eight months and that a factual basis for
the plea was contained in the preliminary hearing transcript. In exchange for his plea, the
People agreed to dismiss the attempted murder and receiving stolen property charges.
The plea form was signed by Sanchez in open court. The trial court found that
Sanchez’s plea was made knowingly, intelligently, and voluntarily.
On January 14, 2015, Sanchez was sentenced pursuant to the plea agreement to a
total term of 28 years and eight months, comprised of eight years for the assault
conviction; a consecutive 20 years for the firearm enhancement appended thereto; and a
consecutive eight months for the vehicle theft conviction. The term for the section 69
offense was imposed and stayed pursuant to section 654; a concurrent term was imposed
for the section 29800, subdivision (a)(1) offense. Various fines and fees were imposed
and credits were awarded.
Sanchez filed a notice of appeal, but did not seek a certificate of probable cause.
3.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal. 3d 436
on June 1, 2015. On June 2, 2015, Sanchez was invited to submit supplemental briefing,
but did not file a supplemental brief.
Our independent review of the record discloses that at sentencing, the trial court
did not address the section 12022.5, subdivision (a) enhancement on count three. The
abstract of judgment consequently fails to reflect the admission of and term imposed for
that enhancement.
The matter must be remanded for resentencing to allow the trial court to exercise
its discretion in imposing a term for the section 12022.5, subdivision (a) enhancement in
conformance with the plea agreement. (People v. Prater (1977) 71 Cal. App. 3d 695, 703,
705.)
DISPOSITION
The convictions are affirmed. The judgment is vacated and the matter is remanded
for resentencing in accordance with the plea agreement.
4.