P. v. Gutierrez 12/1/06 CA6

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H029793

Case Date: 02/14/2007

Preview:Filed 12/1/06 P. v. Gutierez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, v. OSCAR GUTIEREZ, Defendant and Appellant. H029793 (Santa Clara County Super. Ct. Nos. CC466381, CC471404)

Defendant Oscar Gutierez was sentenced to prison following a no contest plea to various criminal charges, including grand theft. As part of his sentence, the court ordered defendant to pay a restitution fund fine of $1,200. Defendant challenges the court's imposition of that fine on appeal, asserting that it was not part of his plea bargain. For reasons explained below, we reject defendant's challenge and we affirm the judgment. BACKGROUND Because the sole issue in this appeal concerns sentencing, our recitation of the facts will be brief. Two criminal cases were filed against defendant in Santa Clara County Superior Court. The charges in those cases arose out of two separate incidents that took place in September 2004 and November 2004 respectively. The facts summarized below are drawn from transcripts of the preliminary examinations in the two cases.

Case Number CC466381 Facts: On September 9, 2004, defendant approached the 14-year-old victim, Jorge Ruiz, who was pushing his small motorcycle on the street. Defendant told to give him the motorcycle or he would beat him up. Defendant then grabbed the motorcycle, pulled the victim's hands away, and left with the vehicle. Charges: In May 2005, defendant was charged by information with a single count of carjacking. (Pen. Code,

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