Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of Riverside County No. RIF130434, Stephen D. Cunnison, Judge.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Factual and Procedural History
Paul Eshelman was walking his dogs when he was approached by defendant and his brother. Defendant put what appeared to Eshelman to be a black semi-automatic pistol to Eshelman’s chin; defendant demanded Eshelman’s wallet. Eshelman walked away. After he had taken a few steps, Eshelman was struck several times on the back of his head with an object. Defendant and his brother then tackled Eshelman to the ground where he was stricken several more times. At least two blows with a metal object hit Eshelman’s hand as he attempted to protect his head from further injuries. During one strike, Eshelman noticed the gun being swung as a weapon. Eshelman prayed out loud for Jesus to have mercy on him, after which the blows ceased. Defendant and his brother then removed Eshelman’s wallet and cell phone and ran off. Eshelman received six or seven staples to his head and six or seven stitches to his hand.
The following day, the police received an anonymous phone call regarding an individual with a gun. Officer Hubbard responded to the scene where he noticed defendant, who matched the description of the suspect, with what appeared to be a handgun hanging out of his pocket. After detaining defendant, Hubbard searched him, discovering that the weapon was a BB gun. Hubbard also found a stolen credit card belonging to Eshelman on defendant’s person. A booking search of defendant revealed 0.5 grams of cocaine in his coin pocket. Defendant’s brother was also apprehended and on whose person officers found Eshelman’s driver’s license and social security card.
Eshelman was unable to positively identify either defendant or his brother at trial or beforehand, though defendant resembled his primary attacker. Prior to an in custody interrogation of defendant, Detective Bloomfield individually read defendant his Miranda rights. Defendant verbally responded in turn that he understood each of those rights. Defendant further signed a form acknowledging that his Miranda rights had been read to him and that he understood them. During the interrogation defendant admitted that, while extremely “high,” he and his brother robbed a “white boy” at an apartment complex the previous night using the BB gun. Defendant admitted wrestling with, struggling with, and hitting the victim in the face. Defendant admitted that when the victim called out to God, defendant stopped beating him.
Miranda v. Arizona (1966) 384 U.S. 436.
The People charged defendant with robbery (count 1 – Pen. Code, § 211) and possession of cocaine. (Health & Saf. Code, § 11350, subd. (a).) The People further alleged that in his commission of the robbery, defendant personally used a deadly and dangerous weapon. (§ 12022, subd. (b)(1).) Defendant moved to exclude his inculpatory statements pursuant to Miranda on the basis that his statements were involuntarily obtained because officers failed to acquire an explicit waiver of defendant’s rights and that they used deceptive and coercive tactics. Despite its acknowledgment that defendant was neither requested to nor expressly did waive his Miranda rights, the court denied the motion on all grounds asserted. Defendant pled guilty as to all charges and allegations after the direct testimony of Eshelman at trial. The court took Eshelman’s testimony as the factual basis for the plea. The court informed defendant that it believed defendant was eligible for probation, but promised no specific sentence, indicating that defendant could be sentenced to a maximum of six years and eight months.
All further statutory references are to the Penal Code unless otherwise indicated.
The probation report indicated that defendant was ineligible for probation. Defense counsel urged the court to impose an aggregate three year prison sentence. The court imposed an aggregate term of six years imprisonment consisting of the upper term of five years on count 1, one year consecutive on the personal use enhancement, and the midterm of two years concurrent on count 2. The court indicated that it was imposing the upper term of count 1 due to the viciousness of the underlying crime and the fact that defendant was on probation when he committed it.
The original sentencing minute order of September 21, 2007, and the abstract of judgment show that the court sentenced defendant to a consecutive term of one-third the midterm of two years, eight months, on count 2. The court corrected the error on January 14, 2008. The superior court filed an augmented clerk’s transcript on May 2, 2008, containing the corrected minute order and abstract of judgment.
Defendant appealed, and upon his request this court appointed counsel to present him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
We have now concluded our independent review of the record and find no arguable issues.
Disposition
The judgment is affirmed.
We concur: HOLLENHORST, J., GAUT, J.