Filed 7/28/15 P. v. Soth CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041451
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1477377)

         v.

JAIME SOTH,

         Defendant and Appellant.



         Defendant Jaime Soth was convicted by plea of one count of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1)). (Further undesignated statutory references are
to the Penal Code.) Defendant also admitted enhancement allegations that he had a prior
conviction that was a strike under the “Three Strikes” law (§§ 667, subds. (b)-(i);
1170.12). The plea and sentence in this case were part of a package deal that resolved a
previous case in which defendant was charged with murder, with enhancements. The
plea also resolved an unfiled case in which a charge of dissuading a witness, with gang
enhancements, was pending. The court designated the murder as the principal case and
sentenced defendant to 38 years to life on that conviction. The court also sentenced
defendant to two additional years (one-third the middle term (§ 1170.1, subd. (a)),
doubled for the strike prior) for the assault with a deadly weapon conviction, consecutive
to his sentence on the murder conviction. In exchange for defendant’s pleas, the
prosecution agreed to dismiss the dissuading a witness charge that was pending. In this
appeal, defendant challenges only the judgment in the assault with a deadly weapon case.
       We appointed counsel to represent defendant in this court. Appointed counsel
filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in the
assault with a deadly weapon case only, which stated the case and the facts, but raised no
specific issues on appeal. We notified defendant of his right to submit written argument
on his own behalf within 30 days. The 30 days have elapsed, and we have received no
written argument from defendant. We will conclude there is no arguable issue on appeal
and will affirm the judgment.

                           FACTS AND PROCEDURAL HISTORY

       We briefly discuss the facts and procedure regarding the murder case for
background information only, since the plea and sentence in this case were part of a
package deal that resolved both cases. The murder case is not before us in this appeal.

Case No. C1108759 – the Murder Case

       In June 2011, the prosecution filed a felony complaint in Santa Clara County
Superior Court case No. C1108759 charging defendant and three others with four
offenses (hereafter “the murder case”).1 Count 1 alleged that in March 2011, defendant
murdered (§ 187) Jeffrey Melanio. The complaint contained the following enhancement
allegations: (1) in committing the murder, defendant “personally and intentionally”
discharged a handgun (§ 12022.53, subds. (b), (c), & (d)); (2) defendant committed the
murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); (3) defendant
had one prior conviction for residential burglary that was a strike under the Three Strikes

       1
         This complaint is not in the record on appeal in this case. On our own motion,
we take judicial notice of the record filed in People v. Jimmy Nguyen, Sixth District
Court of Appeal case No. H038149, which contains a copy of the complaint and other
papers filed in Santa Clara County Superior Court case No. C1108759. (Evid. Code,
§§ 452, subd. (d), 459.)

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law (§§ 667, subds. (b)-(i); 1170.12) as well as a serious felony within the meaning of
section 667, subdivision (a); and (4) defendant had served two prior terms in prison
(§ 667.5, subd. (b)).
       Nineteen-year-old Melanio was eating pizza with some friends in front of a liquor
store when he was approached by defendant and two other men. There was a
confrontation and someone in defendant’s group said “ ‘Fuck You, Cuz,’ ” and
“ ‘Eastside Crips,’ ” several times. Defendant then fired multiple shots, one of which
killed Melanio.

Case No. C1477377 – the Assault with a Deadly Weapon Case

       In February 2014, the prosecution filed a felony complaint charging defendant
with one count of assault with a deadly weapon (§ 245, subd. (a)(1)) (hereafter “the
assault case”). The complaint alleged that in December 2013, defendant assaulted Trevor
Howell with a pencil that was wrapped in a piece of plastic. The complaint alleged, as
enhancements, that (1) defendant had one prior conviction for residential burglary that
was a strike under the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12) as well as a
serious felony within the meaning of section 667, subdivision (a); and (2) defendant had
served two prior prison terms for possession of a firearm by a felon and possession of
stolen property (§ 667.5, subd. (b)).
       There is no probation report for the assault case (the parties entered into a plea
agreement before the preliminary hearing in the assault case). The record, therefore, does
not contain any information about the facts surrounding the assault case other than what
was alleged in the complaint.

Negotiated Resolution of Both Cases

       In June 2014, the parties entered into a negotiated disposition of both cases. In the
murder case, pursuant to the plea agreement, defendant pleaded no contest to one count
of second degree murder and admitted the strike prior, prior serious felony, and gang


                                              3
enhancement allegations. In addition, the prosecution amended the information in the
murder case to change the basis for the gun enhancement from section 12022.53 to
section 12022.5, subdivision (a), and defendant admitted the amended allegation. In
exchange for defendant’s plea and admissions, the prosecution agreed to a sentence of
30 years to life for the murder, consecutive to eight years for the enhancements. When it
took the plea, the court advised defendant that the maximum possible sentence for the
murder was 57 years to life.
       In the assault case, defendant pleaded no contest to assault with a deadly weapon
and admitted the strike prior allegation in exchange for a two-year prison term,
consecutive to his sentence in the murder case. As part of the plea agreement, the
prosecution agreed not to charge defendant with dissuading a witness (§ 136) in a
pending matter, which was based on events that occurred in February 2013.

Sentencing

       In July 2014, the court sentenced defendant in accordance with the terms of the
plea agreement to 38 years to life for the murder, plus two years consecutive for the
assault with a deadly weapon conviction.
       The court based the sentence in the murder case on the following: 15 years to life
for the murder, doubled to 30 years to life because of the prior strike, plus the three-year
lower term for the firearm enhancement, plus five years for the prior serious felony
enhancement. The court stayed the ten-year sentence on the gang enhancement.
       The court sentenced defendant to two years in the assault case, consecutive to the
sentence in the murder case. The court calculated the two years as follows: one-third the
middle term (§ 1170.1, subd. (a)) of three years, doubled for the strike prior. The court
did not impose any additional time for the prior serious felony or prior prison term
enhancements in the assault case. The aggregate term for both cases was 40 years to life.
       In the assault case, the court imposed a general order of restitution in favor of the
victim and a restitution fine of $560 (§ 1202.4). The court also imposed, but then


                                              4
suspended, a parole revocation restitution fine (§ 1202.45) of $560. The court ordered
defendant to pay a $40 court security fee (§ 1465.8) and a criminal conviction assessment
of $30 (Gov. Code, § 70373). The court deemed the assault to be gang-related and
ordered defendant to register as a gang member (§ 186.30).
       Defendant filed a timely notice of appeal with a request for a certificate of
probable cause, in which defendant alleged that his attorney had lied to him about the
plea bargain and told him his sentence would be 40 years, not 40 years to life. Defendant
claimed ineffective assistance of counsel and stated his attorney never talked to him
about his case. Defendant stated he was “high on crystal meth,” even though he told the
court he was not under the influence of drugs or alcohol when it took the plea. The court
denied the certificate of probable cause.

                                       DISCUSSION

       We have independently reviewed the entire record in the assault case pursuant to
Wende, supra, 25 Cal.3d 436. Based upon that review, we conclude there is no arguable
issue on appeal in that case.

                                       DISPOSITION

       The judgment is affirmed.




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                      _______________________________
                      Márquez, J.




WE CONCUR:




_______________________________________
 Rushing, P. J.




_______________________________
 Grover, J.




No. H041451
People v. Soth
