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People v. Melgoza3/9/2005
THE COURT
Appellant, Hector Michael Melgoza, shot the victim in the chest when the victim interrupted him while he was tagging a commercial sign. Appellant was originally charged with attempted premeditated murder with various enhancements. The parties negotiated a plea whereby appellant agreed to admit assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and four enhancements, which exposed him to a prison term of 28 years, and the remaining charges would be dismissed. Appellant pled, the court imposed a term of 28 years, and this appeal followed.
FACTS
On July 4, 2003, at 1 a.m., the victim interrupted appellant while he was tagging a commercial sign with "DR." When the victim told appellant to stop the tagging, appellant approached and shot him in the chest. About 3:10 a.m., an officer stopped a car driven by Daniel Montantes. Appellant was the passenger. Montantes was arrested for driving under the influence , the car was impounded and appellant was released. !(RT 25, 27-28)! During the impound search, officers found a loaded .32 Walther handgun in the glove compartment. The bullet removed from the victim and the casing found at the scene of the shooting matched that gun.
Montantes told officers the gun was not his. He was aware that appellant owned a gun similar to the weapon the officers described to him but he had not seen appellant put anything in the glove compartment that night. He was also aware that appellant had tagged in the past. Detective Edgerle testified, that in investigating the shooting, he learned that appellant was the founding member of a tagging crew called the "Devious Riters," hence the tag, "DR."
PROCEDURAL HISTORY
Appellant was charged with attempted premeditated murder (Pen. Code, §§ 664/187, subdivision (a)/189, Count 1) and being a felon in possession of a firearm (§ 12021, subd. (a), Count 2). As to Count 1, the information alleged that appellant intentionally discharged a firearm, which proximately caused great bodily injury (§ 12022.53, subd. (d)), and that he personally inflicted great bodily injury (§ 12022.7). It also alleged that he had served two prior prison terms (§ 667.5, subd. (b)). Subsequently, the complaint was amended to add Count 3, assault with a firearm (§ 245, subd. (a)(2)), and four enhancement allegations: gang involvement (§ 186.22, subd. (b)(1)), gun use (§ 12022.5), personal infliction of great bodily injury (§ 12022.7), and prior prison term (§ 667.5, subd. (b)).
Before trial, after offers and counter-offers by both sides, the parties negotiated a plea whereby appellant agreed to plead guilty to Count 3 and admit the four enhancements, which would expose him to as much as 28 years in prison, and counts 1 and 2 would be dismissed.
In taking appellant's plea, the court advised him of his trial rights, including the right to a jury trial: "a right to have twelve people listen to the evidence, apply the law and determine whether the prosecution has proved these allegations beyond a reasonable doubt." Appellant expressly waived each right. The court also advised appellant of the consequences of his plea, including that he faced a maximum prison term of 28 years. Appellant then pled guilty to the assault with a deadly weapon charge and admitted the four allegations. The remaining counts and allegations were dismissed.
At sentencing, the court found no factors in mitigation and found in aggravation that appellant's prior convictions were significant and that he had engaged in violent conduct. The court concluded that the factors in aggravation outweighed the non-existent factors in mitigation and sentenced appellant to the upper term
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