Opinion
C082075
05-26-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN LEE GALLO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F4647)
Appointed counsel for defendant John Lee Gallo has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the record, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
The parties stipulated to a factual basis for the plea based upon information contained in five Redding Police Department reports. The reports are not part of the record. Two of the police reports are summarized in the probation officer's postsentence report. On July 23 and 30, 2015, defendant kicked in the front doors and entered two separate homes. In each case, the victim was home and yelled when defendant entered. Defendant fled. On August 6, 2015, police obtained a search warrant and searched defendant's vehicle and home. Defendant confessed he entered several residences but denied kicking open any doors. Police found stolen property related to the burglaries and a shotgun.
Defendant was charged with six counts of residential burglary with a person present (Pen. Code, §§ 459, 667.5, subd. (c)(21); counts 1-6) and one count of being a felon in possession of a firearm (§ 29800, subd. (a); count 7). It was also alleged defendant had a prior conviction for residential burglary, a prior prison term, and a prior serious felony. (§§ 1170.12, 667.5, subd. (b), 667, subd. (a).)
Undesignated statutory references are to the Penal Code. --------
On October 5, 2015, defendant filed a motion for new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The trial court conducted a hearing and denied defendant's motion. On October 20, 2015, the trial court approved defendant's request to replace appointed counsel with private counsel.
On March 18, 2016, defendant pleaded no contest to two counts of residential burglary (§§ 459, 667, subd. (c)(21); counts 1 and 3) and one count of being a felon in possession of a firearm (§ 29800, subd. (a); count 7). In addition, defendant admitted the prior strike and prior serious felony. (§§ 667, subd. (a)(1), 1170.12.) The remaining counts were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
Per the parties' agreement, defendant was sentenced to serve an aggregate term of 17 years in prison, as follows: eight years for count 1 (four years doubled due to the prior strike), two years eight months consecutive for count 3 (16 months doubled due to the prior strike), one year four months consecutive for count 7 (eight months doubled due to the prior strike), plus five years for the prior serious felony. The trial court also imposed a $900 restitution fine (§ 1202.4, subd. (b)) and a corresponding $900 parole revocation fine suspended unless parole is revoked (§ 1202.45). In addition, the trial court imposed $90 in criminal conviction assessment fees (Gov. Code, § 70373), $120 in court security fees (§ 1465.8, subd. (a)(1)), and $78 in burglary fines (§ 1202.5). Also, the trial court imposed $1,763.02 in victim restitution as follows: L.W.: $508.02; C.P.: $955; H.W.: $300.
On appeal, defendant obtained a certificate of probable cause.
Appointed counsel filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
We have undertaken an examination of the entire record and find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
NICHOLSON, Acting P. J. /s/_________
MAURO, J.