Opinion
D075829
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO ALONSO RAMOS, Defendant and Appellant.
Lizabeth Weis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF135607) APPEAL from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In 2010, a jury convicted Ernesto Alonso Ramos and a co-defendant of several gang-related offenses. The jury convicted Ramos of assault with a deadly weapon (a baseball bat) (Pen. Code, §§ 245, subd. (a)(1), 667 and 1192.7, subd. (c)(31)). The jury found the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)), and that Ramos personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a); count 1). It also convicted him of active participation in a street gang (§ 186.22, subd. (a)); count 3); robbery (§ 211; count 4) and found true an allegation of active participation in a street gang (different date than court 2) (count 5); and misdemeanor battery (§ 242; count 7).
All further statutory references are to the Penal Code.
The court imposed a total term of 15 years eight months in prison, consisting of three years for assault with a deadly weapon, plus five years for the gang enhancement and three years for the great bodily injury enhancement; plus one year for robbery (1/3 the mid-term), plus three years four months for the gang enhancement (1/3 the term for the 10 year enhancement).
In 2018, the Department of Corrections and Rehabilitation (CDCR) sent a letter to the court inquiring if there had been an error in calculating the several gang enhancements. CDCR recommended the court recall the sentence and conduct a new sentencing hearing.
The court recalled the sentence under section 1170, subdivision (d).
The court received briefing and held a new sentencing hearing. Following argument, the court found there was no error within the meaning of People v. Gonzalez (2009) 178 Cal.App.4th 1325. The court noted the offense in count 2 was a serious felony because of the use of the bat. But the offense was not a violent felony; hence, the proper term for the enhancement was five years. The court finding no error declined to modify the sentence and informed CDCR of its decision.
Ramos filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to 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 for error as mandated by Wende. We offered Ramos the opportunity to file his own brief on appeal, but he has not responded.
The court action at issue on this appeal did not involve any consideration of the facts of the offenses. We will omit summarizing the facts in this appeal. --------
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review of the record, and in compliance with Anders v. California (1967 386 U.S. 738 (Anders), counsel has identified a possible, but not arguable issue for reversal that was previously considered by counsel in evaluating the potential merits of this appeal: whether Ramos' sentence for count 2 was improperly enhanced twice based on the same great bodily injury enhancement.
We have reviewed the entire record as mandated by Wende and Anders. We have not discovered any reasonably arguable issues for reversal on appeal. Competent counsel has represented Ramos on this appeal.
DISPOSITION
The order reaffirming the original sentence is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.