Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS189535, Raymond Edwards, Jr., Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art VI, § 6 of the Cal. Const.)
NARES, J.
This is the third appeal arising out of Adrian Nathaniel Cortez's conviction for a gang-related shooting at a park in Chula Vista and proceeds in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende).
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Cortez (and his codefendant, Jahaziel Fausto) of conspiracy to commit assault with a deadly weapon or with force likely to produce great bodily injury (count 1) and first-degree murder (count 2). (People v. Cortez (Oct. 2, 2008, D049716) [nonpub. opn.], pp. 1-2 (Cortez I).) The jury found each defendant committed these offenses for the benefit of a criminal street gang and, with respect to count 2, found that each was a principal in the offense and at least one of them personally and intentionally discharged a firearm causing great bodily injury or death. (Ibid.)
The trial court sentenced Cortez to a total term of 76 years to life in prison. (Cortez I, supra, D049716, at p. 2.) The sentence consisted of a term of 25 years to life, doubled for a strike prior but stayed, as to count 1 (the conspiracy charge) and 25 years to life, doubled, plus a consecutive 25 years as to the Penal Code section 12022.53 firearm enhancement and one year, consecutive, for Cortez's prison prior, on count 2 (the murder charge). (Cortez I, supra, at pp. 41-42.) On appeal, this court affirmed the judgment of conviction, but reversed and vacated various aspects of the sentence. (Id. at pp. 41-55.)
All further statutory references are to the Penal Code unless otherwise indicated.
Specifically, we reversed the sentence insofar as the trial court (1) imposed a sentence on count 1 as if it had been charged as a conspiracy to commit murder, when in fact the defendants were charged and convicted of conspiracy to commit assault with a deadly weapon or by means of force likely to produce great bodily injury, (2) indicated that the jury had found true section 12022.53 enhancement allegations relating to count 1 although no such allegation had been charged as to that count, (3) indicated that a gang enhancement under section 186.22, subdivision (b)(1)(C), rather than section 186.22, subdivision (b)(1)(A), was applicable to count 1, and (4) stayed section 12022.53, subdivision (b) and (c) sentence enhancements pursuant to section 654 rather than section 12022.53, subdivision (f). (Cortez I, supra, D049716, at pp. 43-54.) We also concluded that the minute order and abstract of judgment required correction as to the total number of custody credits to which Cortez was entitled. (Id. at pp. 54-55.) The matter was remanded for resentencing. (Id. at pp. 43, 44, 46, 53-55.)
On remand, the trial court sentenced Cortez to 51 years to life on count 2, consisting of a 25-year-to-life sentence, doubled, and a one-year consecutive term for the prior prison term allegation, with a concurrent 2 year term as to count 1. (People v. Cortez (April 14, 2010, D055056) [nonpub. opn.], p. 3 (Cortez II).) Cortez again appealed, contending that the resentencing court had erred in not staying the sentence imposed on count 1 and failing to correct his custody credits. (Id. at p. 1.) The People also argued that the court had failed to impose any term for the enhancement under section 12022.53, subdivisions (d) and (e)(1), as to count 2, and thus imposed an unauthorized sentence. (Cortez II, supra, at p. 1.) This court agreed with each of these contentions, reversing the judgment as to the sentence, vacating the sentence and remanding the matter for another resentencing, with directions that the court (a) stay the sentence on count 1 under section 654, (b) correct the abstract of judgment to accurately reflect Cortez's custody credits, and (c) impose a consecutive 25-year enhancement under section 12022.53, subdivisions (d) and (e)(1) as to count 2. (Cortez II, supra, at pp. 1-6.)
At the second resentencing hearing, Cortez requested that the court reconsider its earlier rulings denying his motion to strike his strike and his motions for a mistrial. The court reiterated its denial of the motions and sentenced Cortez to prison for 76 years, consisting of 25 years to life, doubled, plus a consecutive 25 years for the section 12022.53 enhancement, on count 2 and a consecutive one-year term for the prison prior; it imposed the low term of 2 years on count 1, stayed pursuant to section 654. It imposed a $10,000 restitution fine, a $10,000 parole revocation restitution fine (suspended unless parole was later revoked), a $60 court security fee and a $60 criminal conviction assessment, ordered Cortez to submit a DNA sample and awarded Cortez custody credits of 534 days (actual time) nunc pro tunc to October 25, 2006.
Cortez again appeals. His appellate counsel has filed a brief indicating that she has been unable to identify any argument for reversal and instead asks this court to review the record for error as mandated by Wende. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), the brief identifies five issues as possible, but not arguable, on appeal:
1. whether Cortez was properly sentenced on remand;
2. whether there was any sentencing error;
3. whether the court should have ordered a new probation report;
4. whether the court should have stricken Cortez's strike prior; and
5. whether the court should have granted a motion for new trial or his motions for mistrial at the resentencing.
This court invited Cortez to file a brief on his own behalf, but he did not respond.
DISCUSSION
We have reviewed the record in accordance with Wende and Anders and not found any reasonably arguable appellate issues. We conclude that Cortez has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR McCONNELL, P. J., McINTYRE, J.