People v. Cervantes CA6

Filed 5/23/14 P. v. Cervantes CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040070 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS121683C)

v.

ALBERTO CERVANTES,

Defendant and Appellant.

Defendant Alberto Cervantes pleaded no contest to conspiracy to commit robbery. (Pen. Code, §§ 182, 211.)1 He also admitted a prior “strike” conviction and he admitted the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang. (§§ 1170.12, subd. (c)(1), 186.22, subd. (b)(1).) The trial court imposed an aggregate term of nine years in state prison. We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief stating the case and the facts, but raising no issues on appeal. We notified defendant of his right to submit written argument in his own behalf, and defendant timely responded by letter brief. We have reviewed the entire record under People v. Wende (1979) 25 Cal.3d 436 (Wende), including the claims raised in defendant’s letter brief. (See also People v. Kelly

1 Subsequent undesignated statutory references are to the Penal Code.

(2006) 40 Cal.4th 106.) We conclude there is no arguable issue on appeal, and we will therefore affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND A. Facts of the Offense2 On August 31, 2012, two men with guns robbed the El Migueliño Restaurant in Seaside. The robbers fled with $2,167 in cash. The owner, armed with his personal handgun, pursued the robbers and discharged his weapon at them. He told police he had shot one of the suspects. Later that day, a white Chrysler 300 dropped off a gunshot victim at Salinas Valley Memorial Hospital. The gunshot victim, Evan Hernandez, had been shot in the foot. A witness from the restaurant later identified him as one of the robbers. Later that same day, police stopped a white Chrysler 300 driven by defendant. Police searched the car and found a bloody shoe with a bullet hole matching the location of the wound in Hernandez’s foot. They also found bloody clothing on the front passenger floorboard. Police arrested defendant and questioned him. Defendant initially denied knowing about the bloody shoe, and he stated the bloody clothes were his. He denied having taken Hernandez to the hospital. Defendant then changed his statement and admitted he had picked up Hernandez. But defendant insisted he had nothing to do with the robbery, and said that Hernandez claimed he had been shot while at a party. B. Procedural Background On January 10, 2013, the prosecution charged defendant and three codefendants by information with: Counts One and Two—second degree robbery (§ 211); Count Three—assault with a semiautomatic firearm (§ 245, subd. (b)); and Count Four—street terrorism (§ 186.22, subd. (a)). The information further alleged that defendant committed