P. v. Pena CA5

Filed 6/6/13 P. v. Pena 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F064898 Plaintiff and Respondent, (Super. Ct. Nos. BF140273A, v. BF140363A)

STEVEN PEÑA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. Richard L. Fitzer, 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 Gomes, Acting P.J., Poochigian, J. and Franson, J.

Following the denial of his motion to appoint substitute counsel, appellant, Steven Peña, pursuant to a plea agreement covering Kern County Superior Court case Nos. BF140273A (first case) and BF140363A (second case), pled no contest to the following offenses: in the first case, attempted second degree robbery (Pen. Code, §§ 215, subd. (c), 664;1 count 2), possession of a firearm by a felon (former § 12021, subd. (a)(1); count 5); resisting, delaying or obstructing a peace officer (§ 148, subd. (a)(1); count 6) and misdemeanor active participation in a criminal street gang (§ 186.22, subd. (a); count 7), and in the second case, unlawful driving or taking of a motor vehicle (Veh. Code, § 10851, subd. (a)). Also pursuant to the plea agreement, in the first case appellant admitted an enhancement allegation that he was armed in the commission of the count 2 offense (§ 12022, subd. (a)(1)) and an alternate penalty provision allegation that he committed the count 6 offense for the benefit of, at the direction of, or in association with, a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (d)). The court imposed the agreed upon sentence of five years, consisting of four years four months in the second case—two years on the count 2 substantive offense, one year on the accompanying arming enhancement, eight months on each of counts 5 and 6, and a concurrent county jail term of 149 days on count 7—and eight months on the single offense in the first case. 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.)