People v. Garcia CA5

Filed 11/19/15 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069203 Plaintiff and Respondent, (Super. Ct. No. VCF265323) v.

OMAR VALENCIA GARCIA, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

INTRODUCTION On February 24, 2014, a jury convicted defendant of unlawful possession of a firearm by a felon, unlawful possession of ammunition by a felon, and attempting to dissuade a witness from testifying. In a separate proceeding, the trial court found allegations that defendant had two prior strikes, a prior serious felony, and two prior prison terms to be true. The trial court sentenced defendant to a doubled upper-term sentence of six years for the unlawful possession of a firearm conviction, a concurrent doubled middle-term sentence of four years for the unlawful possession of ammunition conviction, and a consecutive indeterminate term of 30 years to life in prison for the conviction for attempting to dissuade a witness from testifying. On appeal, defendant argues (1) the trial court abused its discretion by sentencing him to the upper term for his unlawful possession of a firearm conviction, and (2) his trial counsel was ineffective for failing to object to the imposition of the upper term sentence.1 We affirm. FACTS On March 9, 2012, defendant shot Lawrence Bierman in the arm and upper chest with a shotgun. Following defendant’s apprehension, an information was filed charging defendant with attempted murder, unlawful possession of a firearm by a felon, and unlawful possession of ammunition by a felon.2 The information was later amended to include a charge of attempting to dissuade a witness from testifying after the discovery of a recorded jailhouse phone call in which defendant told Bierman not to appear at defendant’s preliminary examination.