P. v. Lopez

Filed 10/30/06 P. v. Lopez CA1/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Ruben Lopez was sentenced to an aggregate prison term of nine years and four months following his entry of a guilty plea to charges of robbery (Penal Code, § 211),[1] two counts of assault with a firearm (§ 245, subd. (a)(2)), participation in a criminal street gang (§ 186.22, subd. (a)), taking a vehicle (Veh. Code, § 10851, subd. (a)), and using the vehicle to elude the police (Veh. Code, § 2800.2). He also admitted that he committed one of the assaults for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) He filed a timely notice of appeal. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On the morning of January 9, 2005, two young men were riding home on their bicycles when a passing vehicle slowed next to them. The young men exchanged stares with the occupants of the vehicle, and one of the young men “threw his arms in the air in a ‘What’s up?!’ manner.” The vehicle circled back and one of its occupants asked the young men which gang they were affiliated with. When they responded that they were with the 18th Street gang, a person got out of the vehicle. The two young men tried to ride away from the scene, but they were both shot. One of them was shot in the back and required surgery to remove a perforated portion of his intestine. The other was shot through the leg. One of defendant’s codefendants was identified as the shooter.

This incident was one of several involving defendant. In the other incidents, he allegedly robbed a young man at gunpoint of a cell phone and hundreds of dollars in cash, stole a car, and used the stolen car to evade police officers. Defendant, who, along with his codefendants, was allegedly affiliated with the Norteño gang, was charged in an amended complaint with various offenses, including second degree robbery (§ 211), two counts of assault with a firearm (§ 245, subd. (a)(2)), receiving stolen property (§ 496, subd. (a)), taking a vehicle without the owner’s consent (Veh. Code § 10851, subd. (a), evading a peace officer with reckless driving (Veh. Code § 2800.2), and participation in a criminal street gang (§ 186.22, subd. (a)). The complaint also alleged that defendant committed many of his offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)

Defendant pleaded guilty to robbery (§ 211), two counts of assault with a firearm (§ 245, subd. (a)(2)), participation in a criminal street gang (§ 186.22, subd. (a)), taking a vehicle (Veh. Code, § 10851, subd. (a)), and reckless use of a vehicle to elude the police (Veh. Code, § 2800.2). He also admitted the gang enhancement with respect to one of the assault counts. (§ 186.22, subd. (b)(1).) In exchange for his plea, the prosecutor agreed to dismiss the remaining counts with a Harvey waiver.[2]

The trial court sentenced defendant to an aggregate term of six years and four months for the offenses and imposed an additional three years for the gang enhancement. He received a total sentence of nine years and four months. He was also ordered to pay a restitution fine in the amount of $2,000 pursuant to section 1202.4, subd. (b), and an additional restitution fine in the amount of $2,000 pursuant to section 1202.45, to be suspended unless his parole is later revoked.

DISCUSSION

The record does not contain a certificate of probable cause. Absent a certificate of probable cause, defendant cannot challenge the validity of a guilty plea on appeal. (Pen. Code, § 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Whether the court properly advised a defendant of the consequences of the plea of guilty is relevant only to the validity of the plea. (See People v. Pinon (1979) 96 Cal.App.3d 904, 910.)

Before accepting defendant’s plea, the court advised him of all the constitutional rights he would waive by entry of the plea. He was also advised of the consequences, including the punishment, the payment of restitutions, and the possibility of deportation if he was not a citizen. He indicated that his plea was voluntary. There was a factual basis for the plea.

In pronouncing judgment, the court stated proper reasons for denying probation. The court concluded that the mitigating circumstances did not outweigh the aggravating circumstances and sentenced defendant to the middle term of three years on one of the assault counts plus three years for the gang enhancement. Punishment for the charge of participation in a criminal street gang was stayed pursuant to section 654. The court imposed consecutive 12-month terms each for the robbery count and the second assault count. The court also imposed consecutive eight-month sentences for each of the two Vehicle Code offenses. Defendant was given credit for 362 days in custody plus 54 days under section 2933.1. He was ordered to pay restitution fines as set forth above. He did not object to the restitution fines when imposed.

We find no sentencing errors. The denial of probation and imposition of the middle term for the principal offense was in accord with the negotiated plea, as were the consecutive sentences for the other offenses. The court was justified in imposing the restitution fines.

Defendant was represented by counsel throughout the proceedings. We find no legal issues that require further briefing.

The judgment is affirmed.

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[1] All further statutory references are to the Penal Code, unless otherwise indicated.

[2] People v. Harvey (1979) 25 Cal.3d 754.