Filed 8/21/14 P. v. Gaitan CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DARIO GARCIA GAITAN,

Defendant and Appellant. B252671

(Los Angeles County Super. Ct. No. TA129827)

APPEAL from a judgment of the Superi or Court of Los Ange les County, John J. Lonergan, Jr., Judge. Affirmed.

Joseph S. Klapach, 

### under appointment by the Court of Appeal , for Defendant and Appellant.

No appearance for Plaintiff and Respondent.2 Defendant and appellant, Da rio Garcia Gaitan, appeals from the judgment entered following his pleas of no contest to making cr iminal threats (Pen. C ode, § 422, subd. (a)) 1 (count 1), inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. a)) (count 2), resisting a police officer (§ 148, subd. (a)(1)) (count 4), and his admission with regard to counts 1 and 2 he previously had b een convicted of the serious or violent felony (§§ 667, subd. (d), 1170.12, su bd. (b)) of shooting at an inha bited dwelling house (§ 246) within the meaning of the Th ree Strikes law (§§ 667, subds . (b)-(i), 1170.12, subds. (a)- (d)). The trial court sentenced Gaitan to seven years in prison. We affirm.

FACTUAL AND PROCED URAL BACKGROUND

1. Facts

. 2 Gaitan and the victim, Ruby P., had been dating for approximately seven years and had four children together. On August 30, 2013, Gaitan accused Ruby P. of seeing other men and the two began to argue. Gaitan “pun ched [Ruby P.] on her upper thighs” and hit her with his open hand on her fa ce and body. When Ruby P. told Gaitan she was going to leave him, he threatened to burn down her mother’s house. Ruby P., who was afraid of Gaitan, then decided to stay. Throughout the day, Gaitan and Ruby P. had a number of arguments, during some of which he struck Ruby P. an d during one of which he broke her cell phone. Gaitan then began to ransack the apartment. When Ruby P. finally to ld him she was going to her mother’s house, Gaitan threatened her. He to ld Ruby P., “ ‘You can leave, but I’m gonna hurt you and you know what I’m going to do.’ ” After Gaitan told her he was going to hurt her, Ruby P. was afraid to leave. One of Gaitan’s and Ruby P.’s daughter s was at home while the two were arguing. She became so frightened she left the apartment and calle d the police. When officers arrived, they “announced themselves” and knoc ked on the door. Wh en no one answered, the officers had the apartment manager unlock the apartmen t door. Inside, Gaitan was

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 The facts have been taken from the probation report.3 yelling as he was holding Ruby P. “around her shoulder.” Although the police gave Gaitan various commands, he ignored them and continued to yell, telling the officers to leave his residence. After a time, ho wever, Gaitan was taken into custody. The police report indicated Ruby P. “sus tained bruising to both of her arms, bruising on both upper thighs, minor abrasion[s] on [her] forehead and bruising to her left eye.” Although she had suffere d these injuries, Ruby P. told the officers “she wasn’t seriously injured and needed no medical treatment.”

2. Procedural history

. A felony complaint filed on September 4, 2013 alleged in count 1 that, on or about August 30, 2013, Gaitan comm itted the serious felony (§ 1 192.7, subd. (c)) of making criminal threats against Ruby P. in violation of section 42 2, subdivision (a). Count 2 alleged Gaitan inflicted corporal injury on Ru by P., a “spouse/cohabitant/child’s parent,” a felony in violation of secti on 273.5, subdivision (a). In addition, it was alleged that, during the commission of the crime, Gaitan pe rsonally used a deadly weapon, a stick,

which caused the crime to be a serious or vi olent felony (§§ 1192.7 , subd. (c)(23), 1170, subd. (h)(3)) for which he co uld be required to serve an additional year in prison (§ 12022, su bd. (b)(1)). In count 3, it was alleged Gaitan committe d the crime of assault by means likely to produce great bodily injury, a felony in viol ation of section 245, subdivision (a)(4). It was further alleged that, should he be incar cerated for the offense, any time imposed was to be served in state prison. Count 4 alle ged Gaitan resisted, obstr ucted or delayed peace officers while the officers were attempting to and discharging the duties of their office and employment in violation of section 148 , subdivision (a)(1), a misdemeanor. In count 5 it was alleged Gaitan committed vandalis m of property worth less than $400 in violation of section 594, subdivision (a), a misdemeanor, when he destroyed a cell phone belonging to Ruby P. It was further alleged that prior to the o ffenses charged in count s 1, 2 and 3, Gaitan

had suffered a conviction for the “serious an d/or violent felony” (§§ 667, subd. (d), 1170.12, subd. (b)) of discharging a firearm at an inhabited dwelling in violation of4 section 246, which required him to be se ntenced within the pr ovisions of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The prior conviction also made him eligible for a sentence enhancement pursuant to section 667, subdivision (a)(1). At proceedings held on September 18, 2 013, the trial court indicated it was its understanding Gaitan was going to enter pleas of no contest to counts 1, 2 and 4, count 4 being a misdemeanor. The court continued: “C ount 1 is a strike he’s pleading to. He is going to get the high term of three years an d he is going to admit the strike that’s currently alleged for [the] high term of thre e years doubled for six years. [¶] [For] Count 2 he is going to get the mid term of three years concurrent with the six years on count 1[,] meaning served at the same time. [¶] And then Coun t 4, the one year [is] to be served consec[utively,] meaning in addition to the six years[,] for a total [sentence] of seven years.” After the prosecutor explained to Gaita n the charges to which he would be pleading, Gaitan indicated he understood them and was entering the pleas because it was

in his best interest to do so. Gaitan also recognized he would be “admitting a prior strike allegation.” The prosecutor then indicated, by entering the pleas, Gaitan would be sentenced to seven years in prison when the “maximum sentence [he] could [have] receive[d] on all of the counts . . . charge d [was] 20 years and four months in state prison.” The prosecutor then advise d Gaitan of his “right to a preliminary hearing,” his “right to a jury or court trial,” his “right to confront and cross-examine [the] witnesses against [him],” the “right to use the subpoena power of the court at no cost to [him],” the “right to present a defense and testify as pa rt of that defense,” although “no one [could] force [him] to testify because [he] also [had] the right to remain silent and the right against self-incrimination.” After Gaitan indicated he understood and was willing to waive each of these rights, the prosecutor ad vised him that, if he was on probation or parole, he could be subject to additional tim e in custody and, because this was a second strike, any additional felony of which he might be convicted could subject him to a5 sentence of 25 years to life under the Three St rikes law. Gaitan indicated he understood the consequences of admitting the strike. After stating he understood “the consequences of [his ] plea” and was entering the plea “freely and voluntarily,” Gaitan pled no contest to making criminal threats in violation of section 422, subdivision (a), a felo ny as alleged in count 1 of the complaint. As to count 2, the allegation he inflicted corporal injury on a spouse or cohabitant in violation of section 273.5, subdivision (a), Gaitan again entered a plea of no contest. Finally, Gaitan pled no contest to the allega tion made in count 4, that he resisted,

obstructed or dela yed a peace officer in violation of section 148, subdivision (a)(1). Gaitan then admitted he previo usly had suffered a conviction for shooting at an inhabited dwelling house (§ 246), a “s trike” within the meaning of the Three Strikes law.

The trial court found Gaitan had “knowin gly, intelligently and understandingly expressed a waiver of his constitutional right s,” “that the plea a nd admission [had been] freely and voluntarily made with an unders tanding of the nature and consequences

thereof” and that there was “a factual basis for the plea.” Gaitan waived time for sentencing and, as to count 1, the trial court imposed the high term of three years in state prison, then doubled the term to six years based on Gaitan’s “admission of [his] prior strike.” Fo r his conviction of count 2, the trial court sentenced Gaitan to the midterm of three year s, the term to run co ncurrently to that imposed for count 1. With regard to his c onviction of count 4, th e trial court imposed a term of one year in prison, 3 the term to run consecutivel y to the terms imposed for the other two counts. In total, the trial court sentenced Gaitan to seven years in prison.

3 The trial court indicated the one year te rm imposed for count 4 could “be served in any penal institution.”6 After dismissing counts 3 and 5 in light of the plea agreement, the trial court awarded Gaitan presentence custody credit for 19 days actually served and three days of good time/work time, fo r a total of 22 days. 4 It then ordered Gaitan to pay a $280 restitution fine (§ 1202.4, subd. (b)), a st ayed parole revocation restitution fine (§ 1202.45), a $40 court operations assessme nt (§ 1465.8 , subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373) and a $500 contributio n to the Domestic Violence Fund (§ 1203. 097). Finally, the trial court issu ed an order pursuant to section 273.5, subdivision (i) directing that Gaitan have no contact with Ruby P. with the exception of “peaceful contact . . . only for th e safe exchange of children for [courtordered] visitation as stated in a Family, Juvenile, or Probate court order . . . .” Gaitan filed a timely notice of appeal on November 1, 2013.

CONTENTIONS

After examination of the reco rd, appointed appellate coun sel filed an opening brief which raised no issues and requested this c ourt to conduct an independent review of the record. By notice filed June 4, 2014, the clerk of this court a dvised Gaitan to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. ( Smith v. Robbins (2000) 528 U.S. 259, 278-284; People

v. Wende (1979) 25 Cal.3d 436, 443.)

4 On March 6, 2014, Gaitan’s appointed ap pellate counsel filed an ex parte motion in the trial court to correct the number of presentence custody credits awarded at sentencing. On May 19, 2014, the trial court granted the motion and awarded Gaitan credit for 20 days actually serv ed and 10 days of good time/ work time, or 30 days. The trial court then ordered the abstract of judgment amended to reflect the order.7 DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.