Filed 12/12/19 P. v. Vasquez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

ARTURO VASQUEZ,

Defendant and Appellant.

F079347

(Super. Ct. No. 1221624)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Appointed counsel for defendant Arturo Vasquez asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.

BACKGROUND

On January 7, 2007, defendant shot two males and one bystander with a shotgun in two separate gang-related incidents. Defendant was a passenger in a vehicle with three other Hispanic males. Defendant admitted he was the shooter.

On September 8, 2009, defendant pled no contest to two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 1 & 3). As to both counts, he admitted committing the offenses for the benefit of a street gang (§ 186.22, subd. (b)(1)). As to count 1, he also admitted personally inflicting great bodily injury (§ 12022.7, subd. (a)) and personally using a firearm (§ 12022.5, subd. (a)). In exchange for the plea, he would be sentenced to 20 years in prison and the remaining charges against him would be dismissed.

On October 5, 2009, the trial court sentenced defendant to 20 years in prison, as follows: on count 1, the midterm of three years, plus three years for the great bodily injury enhancement (§ 12022.7, subd. (a)), four years for the firearm use enhancement (§ 12022.5, subd. (a)), and 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)); on count 3, three years, plus five years for the gang enhancement (§ 186.22, subd. (b)(1)(B)), to be served concurrently to the term on count 1.

On September 14, 2018, the Secretary of the California Department of Corrections and Rehabilitation advised the trial court that, pursuant to People v. Gonzalez (2009) 178 Cal.App.4th 1325, the court erred in imposing the great bodily injury enhancement because the gang enhancement (§ 186.22, subd. (b)(1)(C)) was based on the same great bodily injury caused during the commission of the offense. The secretary requested that the court recall defendant’s sentence pursuant to section 1170, subdivision (d) and resentence him.

On May 17, 2019, the trial court, citing Dix v. Superior Court (1991) 53 Cal.3d 442, resentenced defendant to prison for 19 years eight months, as follows: on count 1, the midterm of three years, plus a stayed three-year term for the great bodily injury enhancement (§ 12022.7, subd. (a)), four years for the firearm use enhancement (§ 12022.5, subd. (a)), and 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)); on count 3, one year (one-third the three-year midterm), plus one year eight months (one-third the five-year term) on the gang enhancement (§ 186.22, subd. (b)(1)(B)), to be served consecutively to the term on count 1.

On May 20, 2019, defendant filed a notice of appeal.

Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.