Filed 10/26/18 P. v. Lopez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David G. Brown, Judge. Affirmed.

Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Bryan Medina Lopez was convicted in a court trial of discharging a firearm in a grossly negligent manner, a felony (Pen. Code,[1] § 246.3, subd. (a); count 1); misdemeanor possession of a high capacity magazine (§ 32310, subd. (c); count 2);[2] possession of an assault weapon (§ 30605, subd. (a); count 3); and carrying a loaded firearm, a misdemeanor (§ 25850, subd. (a); count 4).

At sentencing the court denied a defense motion to reduce counts 1 and 3 to misdemeanors in order to assist Lopez in avoiding the immigration consequences of felony firearm convictions. The court suspended the imposition of sentence and granted Lopez probation on various terms and conditions, including 365 days in custody. Lopez filed a timely notice of appeal.

Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating she has not been able to identify any arguable issue for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Lopez the opportunity to file his own brief on appeal, but he has not responded.

STATEMENT OF FACTS

On the evening of July 21, 2017, Lopez, who was born in Mexico, got into an argument with his fiancé. His fiancé left the house, but before she got outside she heard gunshots that sounded like they came from the backyard.

Lopez admitted he obtained an AR-15 assault rifle and high capacity magazine in Texas. He admitted he knew the weapon and magazine were illegal in California. He did not register the weapon in California because of his immigration status and because he had learned it was illegal here.

On the night of the argument, Lopez admitted he was stressed and went outside and fired several rounds into the air. He then put the rifle into his vehicle and left for a short time.

Police arrived to investigate the report of gunshots. They found the assault rifle in plain view in Lopez's vehicle. The house was in a densely populated area.

At the sentencing hearing defense counsel requested the court to reduce the felony counts to misdemeanors to aid Lopez in dealing with immigration problems. The trial court noted Lopez had purchased an illegal assault weapon and magazine and brought them to California. The court determined the act of firing bullets into the air presented a grave risk of harm to others. The court therefore declined to modify the sentence in order to influence the immigration process.

DISCUSSION

As we have noted, appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, indicating she has not discovered any arguable issues for reversal on appeal and requests this court to review the record for error. In order to assist this court and consistent with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has presented a possible, but not arguable issue for our consideration:

Whether the court abused its discretion by failing to consider Lopez's immigration status in making the court's sentencing choice. (Padilla v. Kentucky (2010) 559 U.S. 356, 371.)

We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not discovered any arguable issue for reversal on appeal. Competent counsel has represented Lopez on this appeal.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.