P. v. Lopez

Filed 4/18/07 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge.

Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

Valentine Lopez appeals from a judgment entered following his no contest plea on May 1, 2006, to second degree robbery (Pen. Code,  212.5, subd. (c)) and admission of the personal use of a firearm (Pen. Code,  12022.53, subd. (b)). The negotiated disposition called for a sentence of no longer than twelve years.

At the sentencing hearing on June 6, 2006, the trial judge questioned the legal authority for Lopezs request to stay the sentence on the firearm allegation, but said he would not stay it even if had the authority, stating the Court does not believe that in this particular case the interest [sic] of justice would warrant it. The court denied probation and sentenced Lopez to the low term of two years for the robbery and 10 years for the firearm allegation, for a total of 12 years. The court gave Lopez credit for a total of 123 days in custody.

Lopez timely filed a notice of appeal on July 19, 2006.

FACTS

The parties stipulated that the police reports contained a factual basis for the no contest plea. The following facts are from the probation report, which relied on reports of the Kern County Sheriffs Department.

Lopez and his co-defendant Jose Omar Vallejo went into a market with a firearm. They took money, cigarettes, and lighters. When they were detained by law enforcement officers, Lopez had several packages of cigarettes, and Vallejo had $229.78 and a rifle.

Lopez initially denied his involvement but then confessed that he and Vallejo went to the store to get money. He merely followed Vallejos lead. Vallejo kept the bills and Lopez kept the coins, but Lopez also grabbed some cigarettes. As they ran off, Vallejo gave Lopez the rifle, and it accidentally discharged, shooting into the ground. Lopez gave the rifle back to Vallejo.

In his post-plea interview with the probation officer, Lopez expressed remorse for his actions.

After review of the record, Lopezs court-appointed counsel filed an opening brief which summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

By letter of October 2, 2006, we advised Lopez that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.

We have examined the entire record and are satisfied that no arguable issues exist and that Lopez has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106.)

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.