People v. Gonzalez CA3

Filed 7/21/22 P. v. Gonzalez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C095191

Plaintiff and Respondent, (Super. Ct. No. CRF211082)

v.

PETER ANDRE GONZALEZ,

Defendant and Appellant.

Appointed counsel for defendant Peter Andre Gonzalez filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant pleaded no contest to assault with a firearm and admitted he had been convicted of a serious or violent felony. In exchange for his plea and dismissal of the remaining counts, defendant stipulated he would be sentenced to an upper term sentence of eight years in prison. Pursuant to a plea agreement, the trial court sentenced him to the stipulated upper term. We ordered supplemental briefing regarding the application of Senate Bill No. 567 (2021-2022 Reg. Sess.) to defendant’s sentence. Our review of the record revealed the abstract of judgment contains an error and we will order correction of the abstract of judgment. In all other aspects, we shall affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND On June 11, 2021, Yuba County Sheriff’s deputies responded to a call reporting gunshots fired. When they arrived, they obtained surveillance footage of the area. The surveillance footage showed defendant getting out of his car and arguing with the victim and a woman. The woman told defendant to get in his car, so he did. At that point, the victim lifted up the front of his shirt and put his hand in his waistband. He yelled at defendant as defendant drove away. Defendant stopped his car, got out, and fired at the victim. In response, the victim fired several shots back at defendant. Defendant left. When officers arrested defendant a day later at his residence, officers found a sawed-off shotgun in a locked cabinet in the laundry room and a nylon gun holster in defendant’s car. Defendant advised the officers he attempted to hide narcotics in his body cavity and when those drugs were removed at the hospital, he had 21.4 grams of methamphetamine on his person. The complaint charged defendant with two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)),1 two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1)), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) with a prior felony conviction. The complaint further alleged defendant had a prior serious or violent felony conviction as defined under sections 667, subdivision (d) and 1170.12, subdivision (b). Defendant pleaded no contest to assault with a firearm (§ 245, subd. (a)(2)) and admitted he had been convicted of a serious or violent felony and was subject to sentencing under sections 667, subdivisions (b) through (j) and 1170.12. In exchange for his plea and dismissal of the remaining counts, defendant stipulated he would be sentenced to an upper term sentence of eight years in state prison, which he agreed was the upper term for the assault count, doubled. At the plea hearing, the trial court asked