People v. Vargas CA4/1

Filed 11/25/20 P. v. Vargas CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077605

Plaintiff and Respondent,

v. (Super. Ct. No. SCD175175)

ERNESTO VARGAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

We affirm the trial court’s denial of a petition to resentence defendant Ernesto Vargas on firearm enhancements because his conviction was final long before changes to the law that made sentencing on firearms discretionary instead of mandatory.

FACTUAL BACKGROUND1 On the night of June 4, 2003, Refugio R. was working as the closing manager at a restaurant in Old Town, in San Diego. He closed the restaurant at about 9:00 p.m. and let the last employee out at about 11:00 p.m. As he was working in his office, Refugio heard something hit the wall. He began walking through the restaurant, calling out whether anyone was there. In the kitchen area, Refugio came upon defendant. He was standing about 12 feet away and was holding a shotgun. Refugio ran away, but slipped on a doormat, hit his knee on a wall and fell to the floor. Defendant approached Refugio from behind and pointed the shotgun at him. He said, “stop motherfucker. I’m gonna kill you.” At the time he said this, defendant had his hand on the trigger of the shotgun and was standing three or four feet away from Refugio. He was wearing light tan gloves and a homemade black face mask. Refugio replied, “Take it easy. Don’t do anything crazy. I’ll give you anything you want. Don’t do anything crazy.” Defendant then dropped a backpack he was carrying and ordered Refugio to get on his knees, go to the office and get him money. Refugio got on his knees and crawled to the office. Defendant ordered Refugio to take everything from his pockets and put it on