P. v. Barrios

Filed 8/15/06 P. v. Barrios CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE COURT:*

Appellant Gabriel Barrios appeals from the judgment entered following his open plea of guilty to one count of robbery in violation of Penal Code section 211[1] (count 1) and one count of being a felon in possession of a firearm in violation of section 12021, subdivision (a)(1) (count 2). Appellant admitted the allegation that in the commission of count 1 he personally used a firearm within the meaning of section 12022.53, subdivision (b). Appellant also admitted the allegation that he had suffered two prior strike convictions and two prior convictions for serious or violent felonies. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i); 667, subd. (a)(1).)

After denying appellant's Romero motion[2] with respect to count 1, the court sentenced him to 25 years to life for the robbery with added enhancements of 10 years for the two prior serious felony convictions and 10 years for the firearm-use enhancement. With respect to count 2, the court struck the prior conviction allegations and imposed a concurrent high term of three years. Appellant's total sentence is 45 years to life.

We appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an opening brief that contained an acknowledgment that he had been unable to find any arguable issues. On April 3, 2006, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. No response has been received to date.

We have subsequently examined the entire record in this case. We note that appellant filed a notice of appeal along with a request for a certificate of probable cause on or about August 20, 2005. Appellant stated in his request that his appeal would be based largely on ineffective assistance of counsel. According to the notice of appeal, counsel's ineffective acts consisted of: (1) allowing defendant to enter a guilty plea without a full understanding of his defenses, such as fraud; (2) failing to conduct a proper investigation and to take action when a new theory of law became known to counsel; (3) not advising appellant against signing a waiver of conflict of interest that allowed the sentencing judge to sentence him after making unflattering remarks about defendant; and (4) allowing appellant to enter into a plea agreement that offered him no benefit. Lastly, appellant contended that the errors of counsel were compounded by the trial court's failure to make an adequate record to establish a factual basis for accepting the plea pursuant to section 1192.5. On October 3, 2005, appellant's request for a certificate of probable cause was denied.

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