Opinion
E067646
06-21-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE LOPEZ, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1400030) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Pursuant to a negotiated plea agreement, defendant and appellant Jose Lopez pled guilty to one count of attempted murder (Pen. Code, §§ 664/187, subd. (a)). He also admitted that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) in the commission of the attempted murder. In return, the remaining allegations were dismissed and defendant was sentenced to a total stipulated term of 29 years (the upper term of nine years for the attempted murder plus a consecutive term of 20 years for the firearm allegation) in state prison with 1,067 days credit for time served. Defendant appeals from the judgment. Based on our independent review of the record, we find no error and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
Because the parties stipulated to a factual basis for defendant's plea based on the preliminary hearing, the factual background is taken from the preliminary hearing transcript found in the clerk's transcript dated February 5, 2015. --------
On December 31, 2013, the victim and his brother were standing next to their car in a grocery store parking lot located in San Bernardino County when defendant pulled up behind them in his vehicle and stopped. Defendant, the driver and sole occupant of the vehicle, asked the victim and his brother if they had a problem, and both nodded no. Defendant then shot at the victim with a firearm from inside his vehicle, and sped out of the parking lot. The bullet hit the victim on the right side of his head. Before the shooting, as the victim and his brother were entering the grocery store, defendant had stopped his vehicle and yelled "East Side" at the victim and his brother.
Defendant was apprehended approximately three miles from the scene of the shooting. The victim's brother identified defendant as the shooter in an in-field lineup. A search of defendant's vehicle uncovered a spent casing laying on the front passenger seat of the vehicle and a firearm inside an open backpack located behind the driver's seat of the vehicle. As a result of the shooting, the victim suffered damage to his tongue and jaw area. The bullet was lodged in the back of the victim's head along the spinal cord area and could not be removed. The victim had to have procedures to remove bone fragments from his mouth and required a temporary metal plate to be inserted in his mouth.
On November 8, 2016, an amended information was filed charging defendant with attempted murder (§§ 187, subd. (a)/664; count 1) and discharging a firearm from a motor vehicle (§ 26100, subd. (c); count 2). The amended information further alleged that in the commission of counts 1 and 2, defendant had personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), that defendant had personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and that defendant had personally used a firearm (§ 12022.53, subd. (b)).
Before trial, defense counsel declared a doubt as to defendant's competence to stand trial, and the trial court suspended the criminal proceedings. A jury subsequently found defendant competent to stand trial, and the trial court reinstated the criminal proceedings.
On November 9, 2016, pursuant to a negotiated plea agreement, defendant pled guilty to attempted murder as alleged in count 1, and admitted the attendant firearm use enhancement allegation under section 12022.53, subdivision (c). In return, defendant was promised a stipulated term of 29 years in state prison and dismissal of the remaining charges. After directly examining defendant, the trial court found that defendant read and understood his plea form and that defendant understood the charges and consequences of his guilty plea and admission. The trial court found that defendant knowingly, freely, voluntarily, and intelligently waived his constitutional rights and that defendant's plea and admission were entered into freely, voluntarily, knowingly, and intelligently. The trial court also found that there was a factual basis for defendant's plea and admission. The parties stipulated that the preliminary hearing transcript provided a factual basis for the plea.
On January 11, 2017, the trial court sentenced defendant in accordance with his plea agreement to the upper term of nine years for the attempted murder, plus a consecutive term of 20 years for the firearm use enhancement allegation, for a total term of 29 years in state prison. Defendant was awarded 1,067 days of credit for time served (928 days actual, plus 139 conduct). The remaining allegations were dismissed.
On January 25, 2017, defendant filed a notice of appeal and request for certificate of probable cause. According to the superior court docket, the trial court denied defendant's request for a certificate of probable cause.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, 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, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record. We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.