The People v. Garcia CA5

Filed 10/1/13 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F065296 Plaintiff and Respondent, (Super. Ct. No. BF137956A) v.

RONNIE NEIL GARCIA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Kane, J. and Poochigian, J.

Appellant, Ronnie Neil Garcia, pled no contest to residential robbery (Pen. Code, § 212.5, subd. (a))1 and admitted a personal use of a firearm enhancement (§ 12022.5, subd. (a)). On appeal, Garcia contends: 1) the court abused its discretion when it denied his motion to withdraw plea; and 2) the imposition of a $240 restitution fine violates ex post facto principles.2 We will find merit to this last contention and modify the judgment accordingly. In all other respects, we affirm. FACTS On July 30, 2011, P.A. reported to Bakersfield police officers that at approximately 6:30 a.m. she was awakened by knocking on her front door and the doorbell ringing. P.A. opened the door and saw Garcia, a friend of her ex-boyfriend, standing there. P.A. became very scared because a year earlier Garcia raped her and she did not report the rape because he threatened to kill her if she called police. Garcia entered the house and told her he wanted her television, that his life depended on it, and that he would return it the following day. After P.A. refused, Garcia pulled out a revolver and pointed it at her. He also placed his arm around her neck and began squeezing while whispering in her ear, “My life depends on it and you don‟t care. You don‟t want me to use this gun.” Garcia then had P.A. go into her bedroom. P.A. walked out of the bedroom a short time later and saw Garcia in the living room and another suspect carrying her television away. P.A. also noticed that her telephone and computer were

1 All further statutory references are to the Penal Code. 2 In his opening brief, Garcia also contended that the matter should be remanded for an “on-the-record judgment and sentencing” because the reporter‟s transcript of his sentencing hearing includes only the portion of the hearing during which the court heard Garcia‟s motion to withdraw plea and not the actual sentencing itself. This argument is moot because the missing portion of the reporter‟s transcript of Garcia‟s sentencing hearing was filed in this court on January 30, 2013, and on February 21, 2013, this court granted Garcia‟s motion to withdraw this argument.