People v. Spivey CA3

Filed 4/1/14 P. v. Spivey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C073913

Plaintiff and Respondent, (Super. Ct. No. 12F05621)

v.

WILLIAM ALBERT SPIVEY,

Defendant and Appellant.

Appointed counsel for defendant William Albert Spivey asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) FACTUAL AND PROCEDURAL BACKGROUND On August 14, 2012, Thomas Amaba and his friend, Massimo Fasulo, went to a party at their friend’s house. They left the party around 5:00 a.m. the following day and agreed to take a female friend, Peilinh, to her home.

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At Peilinh’s house, defendant approached Thomas’s car, said his daughter was having an asthma attack, and asked for help making phone calls. Defendant made multiple calls from Thomas’s phone until the phone’s battery died. Defendant then asked Thomas for a ride to the nearest light rail station; in exchange, defendant offered Thomas a dog, a television, or drugs. Thomas initially refused, saying his car was only a “two- seater,” but defendant offered to ride on the trunk so Thomas agreed. Thomas first drove defendant to a house one block from Peilinh’s house so that defendant could get something from the house. Defendant went into the house and came out with a backpack, then asked Thomas to drive him to the intersection of Calvine and Bruceville Roads. Just before arriving at the intersection, however, defendant told Thomas to pull over. Thomas did, and defendant got down from the trunk and used Massimo’s phone to make more phone calls. Defendant again offered both men drugs but they refused, saying they were tired and wanted to go home. Defendant then took out a black handgun, reached into the car, grabbed the gear shift, and ordered Thomas to put the car in park and remove the keys. Defendant ordered both men to empty their pockets, leave their phones and wallets in the car, and get out of the car. Defendant then got in the driver’s seat and drove off. Defendant was later arrested and charged with two counts of carjacking with personal use of a firearm. (Pen. Code, §§ 215, subd. (a), 12022.53, subd. (b).)1 The People also alleged defendant was previously convicted for attempted robbery. (§§ 667, subd. (a)(1), 1170.12(a)-(d).) The information was later amended to include two robbery charges with personal use of a firearm (§§ 211, 12022.53, subd. (b)) and the allegation that defendant previously served time in prison (§ 667.5, subd. (b)).