People v. Davenport CA6

Filed 5/8/14 P. v. Davenport CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039783 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1108020)

v. RAYMOND DONALD DAVENPORT,

Defendant and Appellant.

Pursuant to a negotiated disposition, Raymond Davenport (defendant) pleaded no contest to two counts of robbery (Pen. Code, § 211). As to count one, defendant admitted that he personally used a firearm within the meaning of Penal Code section 12022.5 and that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). In exchange for his no contest plea, defendant was promised that he would be sentenced to 10 years in state prison.1 Further, the People stipulated that defendant would receive custody credits from the date of his arrest in this case. Subsequently, on April 26, 2013, the court sentenced defendant to the upper term of five years on count one and the upper term of five years on count two to be served

1 The understanding was that in a pending case out of San Mateo County any sentence imposed in that case would run concurrent to the sentence in this case. It appears that there was a fourth case out of Santa Barbara County; the understanding was that in that case defendant would receive a one-year prison term to be served consecutive to the term in this case.

concurrently. The court imposed a term of four years for the Penal Code section 12022.5 gun enhancement and one year for the prison prior (Pen. Code, § 667.5, subd. (b))—for a total prison term of 10 years. The court imposed various fines and fees and ordered that defendant pay victim restitution in the amount of $2,482 to Bank of the West, and $2,017 to U.S. Bank; the court imposed a general restitution order in favor of a Ms. Krystle Gutierrez. The court awarded defendant 696 actual days of custody credit plus 104 days pursuant to Penal Code section 2933.1. On June 17, 2013, defendant filed a notice of appeal. He sought and was granted a certificate of probable cause. In his request for a certificate of probable cause, defendant claimed that he was under duress when he entered his pleas and admission; specifically, he asserted that his public defender misled him and pressured him to enter a plea. Defendant's appointed counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende was being requested. On January 14, 2014, we notified defendant of his right to submit written argument on his own behalf within 30 days. That time has passed and we have not received a response from defendant. Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded there are no arguable issues on appeal. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.)