People v. Fox CA5

Filed 3/3/15 P. v. Fox 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F067380 Plaintiff and Respondent, (Super. Ct. No. VCF266744) v.

NIKKI FOX, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. H. N. Papadakis, Judge. (Retired Judge of the Fresno Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Kendall Dawson Wasley, 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 Detjen, Acting P.J., Franson, J. and Smith, J.

PROCEDURAL AND FACTUAL SUMMARY Appellant Nikki Fox was charged in an information with a felony count of second degree robbery (Pen. Code, § 211, count 1) (undesignated statutory references are to the Penal Code) and being a felon in possession of a firearm (§ 29800, subd. (a), count 2). The complaint alleged in count 1 an allegation that appellant personally used a firearm in the commission of robbery (§§ 12022.53, subd. (b) & 12022.5, subd. (a)) and use of a firearm (§ 1203.06, subd. (a)(1)). The information also alleged that appellant was released on bail when she reoffended. A jury trial commenced on April 2, 2013.1 On April 4, 2013, the jury found appellant guilty of counts 1 and 2 and found true the allegations that appellant used a firearm during the commission of the robbery. On May 21, 2013, the trial court sentence appellant to prison for three years on count 1, a consecutive term of 10 years for the firearm enhancement, a consecutive term of eight months for being a felon in possession of a firearm, and a consecutive term of two years for the on-bail enhancement. Appellant’s total sentence in the instant action is 15 years 8 months.2 Appellant was granted 400 days of credits for time in actual custody, conduct credits of 60 days, and total custody credits of 460 days. Appellate counsel has filed a brief seeking independent review of the case by this court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). FACTS Prosecution Evidence At 7:00 p.m. on April 14, 2012, Vickie Lucas was working at Cigarettes 4 Less. Appellant was a regular customer. Lucas was working alone. Appellant entered the