Opinion
C088846
04-21-2020
THE PEOPLE, Plaintiff and Respondent, v. RODOLFO ANTONIO ANDRADE, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STK-CR-FECOD-2014-0008053)
Appointed counsel for defendant Rodolfo Antonio Andrade, Jr., asked this court to review the record and determine whether any arguable issues exist on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A musical artist and his associates were filming a video in front of a market. One of the people participating in the filming was a rival gang member of defendant. Defendant, an associate, and a codefendant parked near the market and called codefendant Gerald Whatley. Defendant told Whatley he had seen the rival gang member in front of the store and that he planned to use an "AR" to " 'max these [N-words] out,' " meaning " 'shoot at them.' " Whatley indicated approval. About 30 minutes later, someone fired at least three shots from a Smith & Wesson assault rifle. Two bullets hit the ice machine inside the market and one struck a customer outside the market, killing him. Stockton Police Department officers subsequently found three Tulammo REM .223-caliber shell casings in an empty lot adjacent to the market.
About one week later, defendant sold a Smith & Wesson assault rifle to Cesar Prado. Law enforcement officers found that rifle, along with two bags of Tulammo REM .223-caliber ammunition, in Prado's house. A forensic firearm and tool mark examiner determined that the assault rifle defendant had sold Prado was the weapon which had expelled the cartridge casings found in the field adjacent to the market.
An amended information charged defendant with two counts of conspiracy to commit murder (Pen. Code, §§ 182, subd. (a)(1)/187, subd. (a); counts 1 & 4), first degree murder (§ 187, subd. (a); count 2), attempted first degree murder (§§ 664/187(a), count 3) and criminal street gang activity (§ 186.22, subd. (a); count 5). The information further alleged as to counts 1 through 3, a criminal street gang enhancement (§ 186.22, subd. (b)(1)) and that a principal intentionally discharged a firearm, causing great bodily injury in a gang case (§ 12022.53, subds. (d) & (e)(1)), and as to count 4, a criminal street gang enhancement (§ 186.22, subd. (b)(1)) and that a principal intentionally used a firearm in a gang case (§ 12022.53, subds. (b) & (e)(1)).
Undesignated statutory references are to the Penal Code.
On September 7, 2018, in anticipation of a plea agreement, the trial court amended count 2 of the information to allege voluntary manslaughter (§ 192, subd. (a)) with enhancements for personal use of a firearm (§ 12022.5, subd. (a)) and for personal infliction of great bodily injury (§ 12022.7, subd. (a)). On December 10, 2018, defendant pleaded no contest to the amended count 2 and admitted the personal use of a firearm and personal infliction of great bodily injury enhancements and the remaining counts and enhancements were dismissed. The parties agreed to a stipulated sentence of 11 years for the voluntary manslaughter, 10 years consecutive for the firearm enhancement, and three years consecutive for the great bodily injury enhancement. The trial court sentenced defendant in accordance with the plea to an aggregate term of 24 years, including 10 years for the firearm enhancement. The trial court also imposed a $300 restitution fine (§ 1202.4), an identical parole revocation fine, suspended unless parole is revoked (§ 1202.45), a $40 court operations assessment (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), and $4,640.95 in direct victim restitution. It also granted defendant 1,764 days of presentence custody credits.
Defendant filed a timely notice of appeal. The trial court denied defendant's request for a certificate of probable cause.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief requesting that we review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days of the opening brief being filed.
Defendant filed a supplemental brief contending he is entitled to a resentencing hearing under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620), to give the court the opportunity to strike or dismiss his section 12022.5, subdivision (a) gun enhancement, "since it won't affect the validity of his plea." Defendant relies on People v. Hurlic (2018) 25 Cal.App.5th 50 (Hurlic) to support his claim he did not need a certificate of probable cause.
In Hurlic, the defendant pleaded no contest to attempted murder and admitted a 20-year firearm enhancement under section 12022.53, subdivision (c) in exchange for a stipulated sentence. The month after the defendant was sentenced, Senate Bill 620 passed. (Hurlic, supra, 25 Cal.App.5th at pp. 53-54.) The Hurlic court concluded the defendant did not need a certificate of probable cause, as he was not challenging the validity of his plea. It based this conclusion on the fact that pleas are deemed to incorporate and contemplate not only existing law, but subsequent changes in the law. (Id. at p. 57.)
Hurlic is distinguishable from this case. The Governor signed Senate Bill 620 on October 11, 2017, and it became effective January 1, 2018. (2017-2018 Reg. Sess., § 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) Defendant did not enter his plea until December 2018, almost one year later. Hurlic explicitly did not address a case such as this, where the negotiated plea was entered when the legislation at issue was already part of the legal landscape. (Hurlic, supra, 25 Cal.App.5th at p. 57, fn. 3; People v. Fox (2019) 34 Cal.App.5th 1124, 1126-1127, review granted July 31, 2019, S256298.)
Moreover, at the time this plea was entered, Senate Bill 620 had been in effect for nearly one year. That is, the trial court had had the discretion to strike the firearm enhancement for nearly one year and declined to exercise it, without objection from defendant. Nor did trial counsel ask the trial court to exercise this discretion. Accordingly, defendant has forfeited this claim on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351-353.)
Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: RAYE, P. J. MURRAY, J.