P. v. Garcia

Filed 5/10/06 P. v. Garcia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., and Gary R. Orozco, Judges.^†

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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On June 23, 2005, appellant, Francisco Garcia, pled no contest to one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2), count four).^[1] Garcia admitted a prior serious felony conviction within the meaning of the three strikes law. In exchange for Garcia's plea, three attempted murder allegations (§§ 664 & 187, subd. (a)), two other counts alleging assault with a firearm, a possession of a firearm by a felon allegation (§ 12021, subd. (a)(1)), and an allegation that Garcia discharged a firearm with gross negligence (§ 246.3) were all dismissed. A gun use enhancement (§ 12022.5, subd. (a)) and a prior prison term enhancement (§ 667.5, subd. (b)) were also dismissed. Under the plea agreement, there was a four-year lid on Garcia's prison sentence.

On August 19, 2005, the trial court denied Garcia's request that his prior serious felony conviction be dismissed pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court imposed the mitigated term of two years, doubled pursuant to the three strikes law to four years, on count four. The court imposed a restitution fine and awarded applicable custody credits. The appellant has not obtained a certificate of probable cause.

Garcia's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel, indicating that Garcia was advised he could file his own brief with this court. By letter on December 1, 2005, we invited Garcia to submit additional briefing. To date, he has not done so.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Levy, J., and Cornell, J.

^† Judge Sarkisian presided over appellant's change of plea. Judge Orozco sentenced appellant.

^[1] Unless otherwise indicated, all statutory references are to the Penal Code.