THE PEOPLE v. ALBERTO MORALES CABELLO (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

On December 6, 2009, Ashley Garcia asked her ex-boyfriend, appellant, Alberto Morales Cabello, for a ride from San Joaquin to Kerman to pick up her son.   Cabello agreed but drove Garcia in his pickup to Five Points, which was not en route to Kerman.   At Five Points, Cabello stopped at a gas station where Garcia was able to tell the clerk to call the police.   Cabello then forced her back into the truck, drove to Interstate Highway 5, and got on the southbound lanes.   Garcia grabbed the truck's gear shift several times and asked Cabello to stop the truck, but she was unsuccessful in getting Cabello or the truck to stop.   At one point, Cabello reached into the back seat area, pulled out a knife, and told her, “I should have killed you the last time we were here.”   He also asked Garcia if she wanted to go to heaven or hell.

Approximately 12 miles south of Kettleman City, Garcia was finally able to put the truck's gear shift in park and hold it there, causing the truck to stop.   Garcia then jumped out of the truck, crossed the median and began waving her arms in the northbound lanes of Interstate 5. Denise Henderson stopped her car and Garcia got in.   Cabello crossed the median and pulled in behind Henderson's car.   He began following Henderson's car at a close distance and attempted to run her off the road twice.   When Henderson took the State Route 41 off-ramp, Cabello pulled up ahead of Henderson's car and parked his truck across the roadway, blocking Henderson's path.   Deputy Kevin Smyres soon arrived at that location, ordered Cabello out of the truck, and took him into custody.

On January 5, 2010, the Kings County District Attorney filed an information charging Cabello with one count each of kidnapping (count 1/Pen.Code, § 207, subd. (a)) ¹ and making criminal threats (count 4/ § 422) and two counts of assault with a deadly weapon (counts 2 and 3/ § 245, subd. (a)(1)).   Counts 1 and 4 each alleged a personal use of a weapon enhancement (§ 12022, subd. (b)(1)).

On January 21, 2010, Cabello pled guilty to the kidnapping and making criminal threats charges in exchange for a stipulated term of eight years eight months and the dismissal of the remaining counts and enhancements.

After Cabello waived a probation report and time for sentencing, the court sentenced him to the stipulated term of eight years eight months, the aggravated term of eight years on his kidnapping conviction and an eight-month term (one-third the middle term of two years) on his criminal threats conviction.

Cabello's appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record.  (People v. Wende (1979) 25 Cal.3d 436.)   Cabello has not responded to this court's invitation to submit additional briefing.

Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.

The judgment is affirmed.

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.