People v. Franco CA3

Filed 6/6/16 P. v. Franco CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C080328

Plaintiff and Respondent, (Super. Ct. No. CM043394)

v.

FRANCISCO MANUEL FRANCO,

Defendant and Appellant.

Appointed counsel for defendant Francisco Manuel Franco has 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.) We need not remand the matter to the trial court although an improper sentencing procedure persists despite prior admonitions to correct it. In any event, we affirm the judgment. I We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.) The factual summary is taken from the probation report, as stipulated by the parties.

1

On July 20, 2015, defendant threw a rock through the window of a business. When police arrived and ordered defendant to get on the ground, he took an aggressive stance and with clenched fists said, “Fuck you bitch. I’ll fuck you up.” Defendant ignored the officer’s order to get on the ground and instead began to walk away. The officer sprayed defendant in the face with “OC spray,” but defendant continued to walk away. When other officers arrived and instructed defendant to get on the ground, he again took an aggressive stance and with clenched fists said, “I’ll fuck you up.” One of the officers kicked defendant causing him to fall. However, defendant continued to yell, “Fuck you” and refused orders to roll onto his stomach. He continued to resist and struggle until he was taken into custody, after which he continued to yell, “fuck you” and call officers “bitch.” Defendant was charged by criminal complaint with felony vandalism of property valued over $400 (Pen. Code, § 594, subd. (a)),1 and misdemeanor resisting an officer (§ 148, subd. (a)(1)). The complaint alleged defendant had two prior strike convictions (§§ 667, subds. (b)-(j) & 1170.12) and six prior prison terms (§ 667.5, subd. (b)). Defendant entered a negotiated plea of no contest to both charges and admitted two prior prison terms in exchange for dismissal with a Harvey2 waiver of the balance of charges and allegations against him. The parties stipulated that the factual basis could be taken from the probation report. The trial court denied probation and sentenced defendant to the upper term of three years, plus two consecutive one-year terms for the prior prison term enhancements, for an aggregate sentence of five years in state prison. The court awarded defendant 104 days of presentence custody credit (52 actual days plus 52 conduct credits) and imposed