Opinion
F076347
07-10-2018
THE PEOPLE, Plaintiff and Respondent, v. CHEZARAY BERNARD UPKINS, SR., Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CM1627A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Peña, Acting P.J., Smith J., and Ellison, J.†
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Appellant Chezaray Bernard Upkins, Sr., pled no contest to second degree robbery (Pen. Code, § 211) and was placed on probation. Following a contested hearing, the court found Upkins violated his probation and sentenced him to prison. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
All statutory references are to the Penal Code. --------
FACTS
On May 29, 2017, at approximately 2:39 a.m., Upkins entered a 7-Eleven store in Hanford wearing a mask that covered his nose and mouth. While holding his hand in his front pocket, Upkins told the store clerk, T.L., he was going to shoot her. After T.L. ran outside, Upkins jumped over the counter and attempted unsuccessfully to take the cash register. Upkins then jumped back over the counter, ran out of the store with 20 packs of cigarettes, and fled in a waiting vehicle. He was arrested on June 6, 2017.
On June 16, 2017, the Kings County District Attorney filed a first amended complaint charging Upkins with second degree robbery and conspiracy to commit robbery (§§ 182, subd. (a)(1) & 211/count 2). On that date, Upkins pled no contest to the robbery count in exchange for the dismissal of the remaining count and an initial grant of probation with a suspended prison term of five years. After Upkins waived time for sentencing and admitted violating his probation in another case, pursuant to his plea agreement the court sentenced him to the aggravated term of five years on his robbery conviction. It then suspended execution of sentence and placed Upkins on probation for five years. As a condition of probation, the court ordered Upkins to stay away from the 7-Eleven store where the robbery occurred and from T.L.
On June 26, 2017, Upkins was arrested after he went to T.L.'s house and attempted to speak with her. During a search of Upkins, officers found a methamphetamine pipe.
On June 27, 2017, the probation department filed a probation violation report alleging Upkins violated his probation on June 26, 2017, by going to the victim's residence and by possessing drug paraphernalia.
On August 9, 2017, at a combined preliminary hearing and probation violation hearing the court found that Upkins violated his probation by contacting T.L. on June 26, 2017.
On September 15, 2017, at Upkins's sentencing hearing, defense counsel filed a motion to withdraw plea on Upkins's behalf alleging that when Upkins entered his plea, he was thinking about being able to go home and did not understand the agreement he made with the prosecutor. The moving papers also alleged that Upkins believed there existed a surveillance video that would exonerate him.
The court denied the motion and lifted the stay of execution on the five-year prison term it had previously imposed.
On September 20, 2017, Upkins filed a timely appeal that did not include a certificate of probable cause.
On November 14, 2017, in response to a request by appellate counsel, the trial court signed an order granting Upkins a certificate of probable cause that was printed on Upkins's appeal and it refiled the appeal.
Upkins's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Upkins has not responded to this court's invitation to submit additional briefing.
Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.