P. v. Rodriguez CA2/5

Filed 3/19/13 P. v. Rodriguez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B242576

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA095069) v.

FRANCISCO JAVIER RODRIGUEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Tia Fisher, Judge. Remanded with directions. California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, Staff Attorney, under appointments by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________

Pursuant to a case settlement offered by the prosecution, defendant and appellant Francisco Javier Rodriguez entered a plea of no contest to a charge of making a criminal threat, in violation of Penal Code section 4221 and admitted the offense was committed for the benefit of a street gang within the meaning of section 182.22, subdivision (b)(1)(B). Defendant‟s motion to withdraw his plea was denied. Defendant was sentenced to the low term of 16 months in state prison for the criminal threat charge. Pursuant to the case settlement agreement, the trial court “stayed” the section 186.22 enhancement. We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief raising no issues but asked this court to independently review the appellate record for arguable contentions under People v. Wende (1979) 25 Cal.4th 436. Defendant was advised of his right to file a supplemental brief. No brief has been received from defendant. Our independent review of the record revealed that the trial court imposed a sentence not authorized by law by staying the section 186.22 gang enhancement.