People v. Otero CA5

Filed 10/21/13 P. v. Otero 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PEOPLE,

Plaintiff and Respondent, F065417

v. (Super. Ct. No. F11906686)

RAYMOND OTERO III, OPINION

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge. Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

* Before Wiseman, Acting P.J., Cornell, J., and Franson, J.

A jury convicted appellant, Raymond Otero III, of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)),1 and in a separate proceeding, the court found true allegations appellant had suffered a prior conviction that qualified as both a prior serious felony conviction (§ 667, subd. (a)) and as a ―strike‖2 and that appellant had served four separate prison terms for prior felony convictions (§ 667.5, subd. (b)). The court imposed a prison term of 19 years, consisting of the following: The five-year upper term on the instant offense, doubled under the three strikes law for a total of 10 years (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)); five years on the prior serious felony enhancement; and one year on each of the four prior prison term enhancements. The court also imposed a restitution fine of $4,800 under section 1202.4, subdivision (b) (section 1202.4(b)) and a ―parole revocation restitution fine‖ (§ 1202.45) in the same amount. The court stayed the latter fine pending successful completion of parole. Appellant‘s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant, in response to this court‘s invitation to submit additional briefing, has filed a brief in which he makes the contentions we discuss below. We affirm. FACTS On November 19, 2011 (November 19), at approximately 9:00 a.m., Jose Montes was walking near Roosevelt High School in Fresno when he ―turned back‖ and saw a