Opinion
D075825
11-27-2019
THE PEOPLE, Plaintiff and Respondent, v. TITO PEREZ, SR., Defendant and Appellant.
Jennifer A. Gambale, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1003269) APPEAL from a judgment of the Superior Court of San Bernardino County, Robert G. Yabuno, Judge. Affirmed. Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
This is the third appeal in the long and twisted history of a murder case filed in 2012. In 2015, Tito Perez, Sr. was convicted by a jury of two counts of dissuading a witness from reporting a crime (Pen. Code, § 136.1, subd. (b)(1); counts 1, 2); two counts of criminal threats (§ 422; counts 3, 4); two counts of attempted extortion (§§ 664 and 520; counts 5, 6); and street terrorism (§ 186.22, subd. (a); count 7). The jury found that counts 1 through 6 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise specified.
Perez appealed and in January 2018, this court reversed counts 3 through 6 and found the evidence of the strike prior was insufficient. We remanded the case for further proceeding.
Following remand, the trial court conducted further proceeding and resentencing. Counts 3 through 6 were dismissed and Perez was sentenced to a lower sentence of 20 years eight months. He again appealed.
In December 2018, this court issued a new opinion remanding the case to the trial court with directions to resentence without the strike prior and to impose no more than five years for the gang enhancement.
On remand the trial court imposed a sentence of 10 years four months. Perez filed a timely notice of appeal.
Appellate counsel has filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436 (Wende)) indicating she has not been able to identify any arguable issues for reversal on appeal. Counsel asks this court to review the record as mandated by Wende. We offered Perez the opportunity to file his own brief on appeal but, he has not responded.
STATEMENT OF FACTS
The facts of the underlying offenses are set forth in our prior opinion in case No. D073001. We will not repeat them here.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks this court to review the record for error. To assist this court in its review of the record and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the possible issues she considered in her evaluation of the merits of this appeal: 1) did the trial court err by resentencing Perez on March 8, 2019 in his absence; and 2) did the trial court err in failing to modify the length of his parole term.
After the third sentencing, Perez was released as he had served more time in custody than called for in the new sentence. Counsel verbally requested the court to modify the terms of his parole. The court declined. --------
We have reviewed the entire record as mandated by Wende and Anders and have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Perez on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. IRION, J.