P .v. Lopez CA5

Filed 11/19/13 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PEOPLE,

Plaintiff and Respondent, F065647

v. (Super. Ct. No. F11900989)

MAXX MATTHEW LOPEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge. Gregory Chappel, 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 Levy, Acting P.J., Kane, J., and Franson, J.

A jury convicted appellant, Maxx Matthew Lopez, of second degree robbery (Pen. Code,1 §§ 211, 212.5, subd. (c); count 1), willfully discharging a firearm in a grossly negligent manner (§ 246.3, subd. (a); count 2), assault with a firearm on Dana Macklin (§ 245, subd. (a)(2); count 4), possession of a firearm within 10 years of a conviction of an enumerated misdemeanor (§ 29805; count 6), making criminal threats (§ 422; count 7), possession of ammunition by a person prohibited from owning a firearm due to a prior conviction (§ 30305, subd. (a); count 8), and resisting, delaying or obstructing a peace officer (§ 148; count 9). In addition, the jury found true the following special allegations: in committing the count 1 offense, appellant personally used a firearm (§ 12022.53, subd. (b)) and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and in committing the count 4 and count 7 offenses, appellant personally used a firearm (§ 12022.5, subd. (a)). The jury acquitted appellant of shooting a firearm at an occupied motor vehicle (§ 246; count 3) and assault with a firearm on Nakisha Warwick (§ 245, subd. (a)(2); count 5). The court imposed a prison term of 25 years, consisting of the five-year upper term on the count 1 substantive offense and 20 years on the accompanying discharging a firearm enhancement. The court imposed concurrent three-year upper terms on each of counts 6 and 8; stayed imposition of sentence on the count 1 personal use of a firearm enhancement (§ 12022.53, subd. (b)) pursuant to section 12022.53, subdivision (f); and imposed, but stayed pursuant to section 654, the following upper terms: on count 2, three years; on count 4, four years on the substantive offense and 10 years on the accompanying enhancement; and on count 7, three years on the substantive offense and 10 years on the accompanying enhancement. On count 9, the court imposed a 365-day county jail term and awarded appellant credit for 365 days served.