P. v. Anderson

Filed 11/14/08 P. v. Anderson CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the order of the Superior Court of Los Angeles County. James B. Pierce, Judge. Affirmed.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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Defendant and appellant Malcolm W. Anderson appeals from the judgment entered following his plea of no contest to second degree robbery (Pen. Code,  211).^[1] Defendants appointed appellate counsel filed an opening brief which did not raise and arguable legal issues and requested independent review pursuant to People v. Wende (1979) 25 Cal.3d 436, 442. After review of the record, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We recount the facts in accordance with the usual rules of appeal. (People v. Kelly (2006) 40 Cal.4th 106, 123-124.) At defendants preliminary hearing, Long Beach police officer Arturo Gonzalez testified that on October 16, 2007, he was responding to a call about a petty theft when he encountered defendant running away from the Wal-Mart on East Fifth Street in Long Beach with the stores loss prevention officers, Dante Booker and Donald Womack, in pursuit. After apprehending defendant, Gonzalez spoke to Booker and Womack. Booker stated that he observed defendant place batteries, candy and razors in his jacket pockets and then walk out of the store without paying for those items. Outside of the store, Booker identified himself to defendant as a loss prevention officer and informed defendant that he was being detained. As Booker grasped defendants left arm, Womack came over to assist and grasped defendants right arm. But defendant pulled away, pushed Womack, took a swing at Booker but missed, and then ran. A few blocks away, defendant stopped, pulled out a knife and pointed it at Booker, then kept running until he made contact with Gonzalez. Womack confirmed Bookers description of events. When Gonzalez searched defendant, he did not find a knife; he also failed to find a knife along the route appellant had been running before he was apprehended. Gonzalez did, however, find the candy, razors and batteries in a bush.

Defendant was charged with second degree robbery of Booker and Womack ( 211)(counts 1 & 2); second degree burglary of Wal-Mart ( 459)(count 3); and petty theft with a prior ( 666)(count 4); a single prior conviction formed the basis of enhancements alleged pursuant to the Three Strikes Law ( 1170.12, subds. (a)-(d),  667, subds. (b)-(i)) and section 667, subdivision (a)(1).

Pursuant to plea negotiations, defendant pled no contest to second degree robbery of Booker (count 1) and admitted the section 667, subdivision (a)(1) enhancement; in exchange, the remaining counts and the Three Strikes enhancement were dismissed. At the sentencing hearing, defendant requested that the trial court strike the prior conviction enhancement. The trial court declined to do so, explaining that it had no discretion to strike a section 667, subdivision (a) enhancement. Accordingly, defendant was sentenced to seven years in prison comprised of the low term of 2 years for the robbery, plus a consecutive five years for the prior conviction enhancement.

He filed a timely notice of appeal from the sentence.

In a letter dated July 22, 2008, we informed appellant that his appointed appellate counsel had failed to find any arguable issues and that appellant had 30 days within which to submit a brief or letter stating any arguments he wished the court to consider. In a letter dated July 29, 2008, appellant requested that we reduce [his] enhancement time. As we understand his argument, it is that the trial court abused its discretion in declining his request that it strike the five year enhancement.^[2]

DISCUSSION

The trial court did not abuse its discretion in declining defendants request to strike the prior conviction enhancement. As the trial court explained at the sentencing hearing, it had no discretion to do so. (See  1385, subd. (b) [This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.]; People v. Jordan (2006) 141 Cal.App.4th 309, 319 [courts lack discretion to strike or stay allegations of prior serious felony convictions under  667, subd. (a)(1).])

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

WE CONCUR:

FLIER, J.

BIGELOW, J.

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^[1] All future undesignated statutory references are to the Penal Code.

^[2] In his letter, appellant states: I have only been to prison one time before this, and I have not been in prison for over 10 years. I got 7 years for shoplifting, they say because I fight and struggle with the store security that [made] it [second degree] robbery; I did not fight and struggle with [anyone], I [took] off running when I [saw] the store [security] beside me . . . .