P. v. Rivas CA5

Filed 4/16/13 P. v. Rivas 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F065072 Plaintiff and Respondent, (Super. Ct. Nos. BF137285A, v. BF124491A)

EDWARD RIVAS, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. Deborah Prucha, 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 Peña, J.

Pursuant to a plea agreement, appellant, Edward Rivas, Jr., pled no contest to two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c);1 counts 1, 4) and a single count of assault with a deadly weapon (§ 245, subd. (a)(1); count 3), and admitted an enhancement allegation that in committing the count 4 robbery, he personally used a firearm (§§ 12022.53, subd. (b)). Consistent with the plea agreement, the court imposed a prison term of 17 years, consisting of the following: five years on the count 4 robbery; 10 years on the accompanying enhancement; one year on the count 1 robbery; and one year on the count 3 aggravated assault. Prior to entering his pleas and admission, appellant made, and the court denied, a motion for the appointment of substitute counsel. (See People v. Marsden (1970) 2 Cal.3d 118.) Appellant filed a timely notice of appeal. Insofar as the record reveals, appellant did not request, and the court did not issue, a certificate of probable cause (§ 1237.5). Appellant‟s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court‟s invitation to submit additional briefing. We affirm. FACTS2 Count 3 – Assault with a Deadly Weapon On June 15, 2011, officers investigating a report of a stabbing went to a park where they made contact with Andrew Chavera, who told the officers the following: As Chavera was coming out of the restroom, appellant approached him and asked him his name. Chavera responded “„Why, what‟s up,‟” at which point appellant yelled an