Opinion
B201318
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. ERIC ANTHONY RIOS, Defendant and Appellant.
Kenneth J. Hutz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
On March 4, 2005 Eric Anthony Rios sat down to a meal at a fast food restaurant. After the other customers had left, Rios displayed a gun and took one of the restaurant employees to the back office. Once there Rios demanded money from the manager, Omar Flores, at gun point. Flores retrieved about $1,000 in cash from the restaurants registers and gave it to Rios, who then fled. Rios was subsequently arrested for the robbery while incarcerated for an unrelated crime.
A jury convicted Rios of second degree robbery (Pen. Code, § 211) and found he had personally used a firearm to commit the offense (§§ 12022.53, subd. (b)). The trial court denied probation and sentenced Rios to an aggregate state prison term of 13 years: the middle term of three years for robbery, plus 10 years for the firearm use enhancement. The court ordered Rios to pay a $20 security assessment and a $2,600 restitution fine. A parole revocation fine was imposed and suspended pursuant to section 1202.45.
Statutory references are to the Penal Code.
Rios was precluded from receiving presentence custody credit against his sentence in this case because, when arrested for the robbery, he was serving a sentence for an unrelated offense. (See People v. Pruitt (Mar. 28, 2008, B198408) ___ Cal.App.4th ___, ____ ; People v. Huff (1990) 223 Cal.App.3d 1100, 1104-1105.)
Rios timely filed a notice of appeal. We appointed counsel to represent Rios on appeal. After examination of the record counsel filed an "Opening Brief" in which no issues were raised. On December 3, 2007 we advised Rios he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied Rioss attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)
Two clerical errors appear in the record. The trial court stayed the section 12022.5, subdivision (a) gun-use enhancement alleged in the information, although that allegation was not submitted to the jury. Apparently, the prosecution elected not to proceed on that enhancement; the allegation should have been dismissed. Additionally, a minute order wrongly states Rios "admits prior allegations," although none was alleged in the information or admitted by him. Because these errors do not affect the judgment and do not appear on the abstract of judgment, they require no corrective action by this court.
The judgment is affirmed.
We Concur:
WOODS, J.
ZELON, J.