People v. Whitehead CA5

Filed 5/23/22 P. v. Whitehead 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082887 Plaintiff and Respondent, (Fresno Super. Ct. No. F18902213) v.

JERRY JAYVON WHITEHEAD, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Judge. J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P. J., Meehan, J. and De Santos, J.

INTRODUCTION Appellant and defendant Jerry Jayvon Whitehead pleaded no contest to multiple felony offenses and was sentenced to state prison. On direct appeal, we affirmed his convictions and remanded the matter for the trial court to determine whether to exercise its discretion to dismiss the five-year term imposed for the prior serious felony conviction enhancement (Pen. Code, § 667, (a)),1 and consider an objection to his ability to pay the fines and fees based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). On remand, the court ordered the fines and fees stricken but denied his motion to dismiss the prior serious felony enhancement. In this appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm. FACTS2 On March 28, 2018, P.G. and T.R. were sitting in P.G.’s parked 2012 Hyundai Sonata. They were confronted by two men who pointed firearms at them. The victims later identified the suspects as defendant Whitehead and his accomplice, Clarence Allen. The victims reported that one man had a semiautomatic firearm, possibly a .40-caliber Glock, and the other man had a long gun with a silencer. The men ordered the victims to get out of the car and leave everything inside. T.R. hesitated and defendant threatened to shoot her in the face. The victims got out and left their belongings inside the car. Defendant and Allen got in and drove away in P.G.’s car.

1 All further statutory citations are to the Penal Code unless otherwise indicated. 2 On May 9, 2022, this court advised the parties that it was considering taking judicial notice of the records before this court in defendant’s prior appeal, People v. Whitehead (June 4, 2020, F078793) [nonpub. opn], and a party’s failure to object would be considered as the lack of opposition. On May 19, 2022, the People advised this court there was no opposition to judicial notice. Defendant did not file a response. We therefore take judicial notice of said records.