P. v. Marchand

Filed 11/30/05 P. v. Marchand CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. KEITH RENE MARCHAND, Defendant and Appellant.

2d Crim. No. B180931 (Super. Ct. No. BA219176) (Los Angeles County) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on October 31, 2005, be modified as follows:

1. On page 2, fourth full paragraph, line 4, delete the sentence beginning "Marchand pled guilty" and replace it with the following:

Marchand pled guilty "to the crime of ROBBERY (Felony), committed on the 27th day of January, 1992, in violation of NRS 200.380 . . . ."

2. On page 3, add the following to the end of the first full paragraph:

Penal Code section 667.5, subdivision (c)(9) provides, in pertinent part, that for the purposes of the section a "'violent felony' shall mean any of the following: . . . [¶] (9) Any robbery."

3. On page 4, fourth paragraph, delete everything after the first sentence and add the following in its place:

Marchand pled guilty to the robbery committed on January 27, 1992. The only charge to which his plea relates is count V which states, in pertinent part, that he "did, on or about January 27, 1992, then and there willfully, unlawfully, and feloniously take personal property, to-wit: lawful money of the United States, from the person of JEFFREY JOHNSRUDE, or in his presence, . . . said Defendant using a deadly weapon, to-wit: a firearm, during the commission of said crime." (People v. Guerrero, supra, 44 Cal.3d at pp. 345, 356 [courts may consider entire record including foreign accusatory pleading and defendant's plea]; see also People v. Blackburn (1999) 72 Cal.App.4th 1520, 1526-1527, 1531.) Thus, the record establishes that Marchand committed the crime by the present use of force or fear of force. The Nevada court's minutes and its bench warrant of March 10, 1992, show that nearly three years elapsed between his arraignment on the charges and his arrest on the warrant in Los Angeles on November 13, 1995. Marchand's act of absconding from the state of Nevada establishes both asportation of the property taken, and his specific intent to permanently deprive the victim of that property. (See People v. Avery, supra, 27 Cal.4th at pp. 54-57.)

4. On page 5, the first full sentence shall be modified as follows:

After he was extradited, Marchand pled guilty to one count of robbery, and the court ordered restitution.

5. On page 5, delete the first full paragraph.

6. On page 6, the first full paragraph is modified to read as follows:

In sentencing Marchand to the upper term, the trial court found there were two aggravating factors. There are no mitigating factors. The trial court found that in committing the underlying Vehicle Code violations, Marchand drove at high speed through a light, and caused accidents. This conduct involved the threat of great bodily harm. (Cal. Rules of Court, rule 4.421(a)(1).) The court also noted his numerous other prior theft and drug convictions. (Cal. Rules of Court, rule 4.421(a)(7).) Accordingly, the trial court did not err by imposing the upper term without a jury.

[There is no change in the judgment.]

Appellant's petition for rehearing is denied.

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