Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 04CF2056 & 04CF2324, Patrick Donahue, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted Hector Tenorio of two counts of assaulting a peace officer with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2)), one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378), one count of possession of heroin (Health & Saf. Code, § 11350), and one count of street terrorism (§ 186.22). In addition, the jury found true the allegations defendant personally used and discharged a firearm during both assaults (§ 12022.53, subds. (b), (c)), and committed the assaults and possessed methamphetamine for sale for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated trial, defendant admitted a prior conviction for grand theft of an automobile. The court sentenced defendant to a total prison term of 32 years and four months.
All statutory references are to the Penal Code unless otherwise stated.
The second amended information charged defendant with possession of heroin for sale, but after the People closed their case, the judge reduced the charge to simple possession of heroin.
On appeal, we reversed and struck the criminal street gang enhancements relating to defendant’s convictions on both counts of assaulting a peace officer and the street gang enhancement relating to the possession of methamphetamine. We remanded the case to the trial court for resentencing and reminded the court that it was entitled to reconsider its entire sentencing scheme.
On remand, the court sentenced defendant to an aggregate prison term of 32 years as follows: The upper term of nine years on count 1 (assault on first officer); a consecutive term of two years and four months (1/3 midterm) on count 2 (assault on second officer); a consecutive term of 20 years on the personal discharge of a gun enhancement attached to count 1; and a consecutive term of eight months (1/3 midterm) on count 4 (possession for sale of methamphetamine). On count 3 (possession of heroin), the court imposed a prison term of two years (midterm) to be served concurrently to the sentence on count 1. On count 5 (street terrorism), the court imposed a concurrent term of one year in county jail, but deemed the time served. The court stayed sentence on the gun enhancements attached to count 2 and 3 pursuant to section 654, and struck the prison prior pursuant to section 667.5.
At the same time defendant was resentenced on the remanded case (case No. 04CF2324), he entered a guilty plea to one count of robbery in another pending case (case No. 04CF2056). The court sentenced defendant to the low term of two years in state prison, to be served concurrently to his sentence in case No. 04CF2324.
Defendant appealed both sentences.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against defendant, but advised the court no issues were found to argue on defendant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given 30 days to file written argument in his own behalf. That period has passed, and we have received no communication from defendant.
We have examined the record and have not found any arguable error. The sentence in case No. 04CF2324 was well within the court’s sentencing discretion and did not exceed the aggregate term imposed in his original sentence. In case No. 04CF2056, defendant’s constitutional rights were explained to him meticulously, and defendant acknowledged he was entering the plea voluntarily and under no compulsion. The Tahl form is complete with defendant’s initials in all relevant places, the facts stating the basis for the plea are adequate, and the court sentenced him in accordance with the sentence indicated on the form. Importantly, defendant waived his right to appeal the sentence. Finally, defendant did not request a certificate of probable cause in connection with his appeal in case No. 04CF2056.
In re Tahl (1969) 1 Cal.3d 122.
The judgment is affirmed as to case No. 04CF2324. The appeal is dismissed as to case No. 04CF2056.
WE CONCUR: SILLS, P. J., ARONSON, J.