People v. Bustamante CA5

Filed 6/30/23 P. v. Bustamante 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F085575
Plaintiff and Respondent,
(Kern Super. Ct. No. DF016679C)
v.
ANTONIO BUSTAMANTE, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David E. Wolf,
Judge.
Vicki Hightower, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P. J., Franson, J. and Peña, J.
INTRODUCTION
Appellant and defendant Antonio Bustamante (appellant) and two other inmates
serving a sentence in the California Department of Corrections and Rehabilitation
(CDCR), were charged with attempted murder and other offenses. Appellant pleaded no
contest to one count of assault with a deadly weapon while confined in CDCR, for the
second strike term of eight years served consecutively to the sentence he was already
serving.
On appeal, his appellate counsel filed a brief that summarized the facts with
citations to the record, raised no issues, and asked this court to independently review the
record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not filed a supplemental
brief. We affirm.
PROCEDURAL BACKGROUND
On February 4, 2022, a complaint was filed in the Superior Court of Kern County
charging appellant and codefendants Jose Lara and Juan Carlos Guardado with
committing the following offenses on or about June 1, 2021: count 1, attempted murder
(Pen. Code, §§ 664, 187),1 with allegations that the offense was premeditated (§ 189) and
each personally inflicted great bodily injury (§ 12022.7) and personally used an inmate-
manufactured weapon (§ 12022, subd. (b)(1)); count 3, assault with a deadly weapon
while confined in CDCR (§ 4501, subd. (a)), with allegations that each personally
inflicted great bodily injury (§ 12022.7); count 4, assault by means of force likely to
produce great bodily injury while confined in CDCR (§ 4501, subd. (b)), with allegations
that each personally inflicted great bodily injury (§ 12022.7) and personally used an
inmate-manufactured weapon (§ 12022, subd. (b)(1)); and count 5, possession or control
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
of an inmate-manufactured weapon while confined in CDCR (§ 4502, subd. (a)), with
prior conviction allegations.2
Plea and Sentence
On September 8, 2022, appellant entered into a negotiated disposition and pleaded
no contest to count 3, assault with a deadly weapon while confined in CDCR, and
admitted the attached allegations and all five prior strike convictions.3 The parties
stipulated to the factual basis based on the probable cause statement and reports produced
in discovery. The court advised appellant of his constitutional rights, and appellant said
he understood and waived his rights. Appellant also signed an advisement and waiver of
rights form.
As part of the negotiated disposition, the court stated it would grant appellant’s
motion to dismiss four of his five prior strike convictions pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, and appellant would be sentenced to the midterm
of four years, doubled to eight years as the second strike sentence, to be served
consecutively to the term he was already serving in CDCR. The court granted the
People’s motion to dismiss the remaining charges and allegations on condition the plea
remain in effect.
On October 24, 2022, the court conducted appellant’s sentencing hearing, and
dismissed the great bodily injury enhancement attached to count 3, the prior serious
felony conviction enhancements, and four of appellant’s five prior strike convictions
pursuant to Romero.
2 In count 2, codefendant Lara was separately charged with being a prisoner
serving a life sentence and committing an assault with a deadly weapon or by any means
of force likely to produce great bodily injury (§ 4500).
3 At the same hearing, codefendants Lara and Guardado entered into similar
negotiated dispositions and pleaded no contest to count 3 with dismissal of prior
conviction allegations, and for each to receive a second strike term of eight years.
3.
The court sentenced appellant to the midterm of four years, doubled to eight years
as the second strike term, fully consecutive to the sentence appellant was already serving
in CDCR; he was not awarded any custody credits. The court imposed a restitution fine
of $300 (§ 1202.4) and suspended the parole revocation fine in the same amount
(§ 1202.45); a court operations assessment of $40 (§ 1465.8, subd. (a)(1)) and a court
facilities assessment of $30 (Gov. Code, § 70373) were also imposed. The court found
appellant did not appear disabled, and he had the ability to pay those amounts, pursuant
to People v. Dueñas (2019) 30 Cal.App.5th 1157.
On January 4, 2023, appellant’s notice of appeal was filed with this court; his
request for a certificate of probable cause was denied on the same day.
On May 3, 2023, this court filed an order that granted appellant’s application to
construe the notice of appeal to include the following language: “The grounds for appeal
are sentencing issues, after admission of a probation violation, which [do] not challenge
the validity of the plea or admission.” This court further found that while appellant’s
notice of appeal was filed on January 4, 2023, the notice was timely because appellant
delivered it to prison officials on December 18, 2022, which was within 60 days of the
October 24, 2022, judgment.
DISCUSSION
As noted above, appellant’s counsel has filed a Wende brief with this court. The
brief also includes counsel’s declaration indicating that appellant was advised he could
file his own brief with this court. By letter on May 1, 2023, we invited appellant to
submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
4.