Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF 217730 Gerald F. Sevier, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.
STATEMENT OF THE CASE
On February 26, 2009, appellant, Sergio Martinez Gutierrez, was charged in a criminal complaint with robbery (Pen. Code, § 211). The complaint alleged a prior serious felony conviction (§ 667, subd. (a)(1)) a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)–(i) & 1170.12, subds. (a)–(d)), and three prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise indicated, all statutory references are to the Penal Code.
On May 15, 2009, appellant entered into a plea agreement wherein he would admit the robbery allegation, the prior serious felony allegation, and the three strikes allegation with an indicated sentence of nine years. The trial court advised appellant of the consequences of his plea and his constitutional rights pursuant to Boykin/Tahl. The appellant waived his constitutional rights. The parties stipulated to a factual basis for his plea. Appellant pled no contest to the robbery allegation. Appellant admitted the three strikes allegation and the allegation that he committed a prior serious felony. Appellant further admitted two prior prison term allegations.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
There was no preliminary hearing. According to the probation report, on February 24, 2009, officers were dispatched to a Target store in Tulare County at 10 p.m. to investigate a robbery. The victim told the officers he was walking toward his truck when appellant approached him to ask directions to the freeway. The appellant told the victim to give him his wallet and indicated he had a gun. The victim thought appellant was not armed with a gun, but instead with a long knife or machete. The appellant then demanded the victim’s money rather than his wallet. The victim handed appellant a $100 bill. The appellant demanded the victim’s cell phone, which the victim handed appellant. Appellant then fled on foot. The victim gave investigators a description of appellant’s vehicle. Appellant was stopped. The victim’s cell phone was in a passenger door pocket.
On June 16, 2009, the trial court sentenced appellant to prison for two years for robbery and, pursuant to the three strikes allegation, doubled appellant’s term to four years. The court added a consecutive term of five years for the prior serious felony conviction for a total prison term of nine years. The court granted applicable custody credits and imposed a restitution fine and other fees and assessments. Appellant did not obtain a certificate of probable cause and filed a timely notice of appeal.
The court stayed execution of sentence of the prior prison term enhancements. On October 16, 2009, appellate counsel sent a letter to the superior court noting that the trial court was without authority to stay a prior prison term enhancement but must impose it or strike it. (People v. Haykel (2002) 96 Cal.App.4th 146, 151.) Appellant sought to have the trial court strike the prior prison term enhancements, correct the clerk’s minutes, and prepare an abstract of judgment. Under section 1385, the trial court can only strike enhancements upon a statement of reasons recorded in the clerk’s minutes. (People v. Bonnetta (2009) 46 Cal.4th 143, 150-152 (Bonnetta).)
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on October 20, 2009, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The case is remanded to the trial court to comply with section 1385 and Bonnetta. The judgment is otherwise affirmed.