People v. Toledo CA4/3

Filed 7/14/21 P. v. Toledo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, G059559 Plaintiff and Respondent, (Super. Ct. No. 02NF1122) v. OPINION RIGOBERTO FRANCISCO TOLEDO,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

Defendant Rigoberto Francisco Toledo appeals from the trial court’s denial 1 of his petition for resentencing filed pursuant to Penal Code section 1170.95. That petition was denied on October 16, 2020. We appointed counsel to represent Toledo on appeal. After conducting his analysis of potential appellate issues, counsel has informed us in his declaration that he has reviewed the appellate record, and consulted with a staff attorney at Appellate Defenders, Inc. Counsel then filed a brief pursuant to the procedures set forth in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. While not arguing against his client, counsel set forth the facts of the case and advised us he was unable to find an issue to argue on defendant’s behalf. Counsel then advised Toledo of his right to file a written argument on his own behalf; he has not done so.

FACTS The facts relevant to this appeal can best be summarized by excerpting from our prior opinion in which we affirmed Toledo’s second-degree murder conviction. (People v. Toledo (June 16, 2004, G031808) [nonpub. opn.] (Toledo).) “Late in the afternoon of March 24, 2002, an employee of the Bakers Square Restaurant in Anaheim was walking through the parking lot after finishing her shift for the day. She noticed a man on a cell phone walking away from the parking lot. She also saw a tan van backed into a parking space in a remote area of the lot, and through the van’s open sliding door she saw what appeared to be a pillow bobbing up and down. She reported the incident to her manager. “The manager went outside to inspect the van and heard moaning from inside. He observed what appeared to be a person inflating something inside the van. Alarmed, he notified the police and waited outside for their arrival.