Opinion
F042486.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID VIGIL, Defendant and Appellant.
Louis Marinus Wijsen, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
On October 5, 2001, appellant David Vigil pled nolo contendere to an amended allegation that he committed voluntary manslaughter (Pen. Code, § 192, subd. (a)). Vigil also admitted he committed three prior serious felonies within the meaning of the three strikes law.
The court sentenced Vigil "to the Department of Corrections for the term prescribed by law, of 33 years to life." The court granted applicable custody credits and imposed a restitution fine. In his first appeal, case No. F039503, Vigil contended the trial court erred in sentencing him to a term he asserted was in excess of the plea bargain. He further argued the trial court erroneously believed the 33-year-to-life sentence was mandatory, when, in fact, the court retained sentencing discretion concerning whether to impose the upper term, the midterm, or the mitigated term.
Respondent conceded the sentence was erroneous if there was a limit on the length of Vigils sentence, which was incorporated as a condition of his plea. Respondent, however, considered the record was ambiguous concerning whether there was a limit to the length of Vigils sentence as a condition of the plea agreement.
We concurred with respondents assessment and remanded the case for the trial court to consider whether there was a limit on Vigils sentence as a condition of his plea and for the court to exercise its sentencing discretion. The trial court heard Vigils motion to withdraw his plea and denied it. The court further found that the plea was unconditional with regard to the term of Vigils sentence.
The court stated on the record that it understood its sentencing discretion. The court denied Vigils request to strike one or more of his serious prior felony convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Noting that the parties had an expectation that Vigils prison term would be 25 years to life, the court reduced Vigils original prison term and sentenced Vigil to prison for 25 years to life.
Vigils appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court independently to review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Vigil was advised he could file his own brief with this court. By letter of May 19, 2003, we invited Vigil to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.
The judgment is affirmed. --------------- Notes: Toward the end of sentencing, the court clarified its understanding of the law explaining to defense counsel that "the law provides that the [c]ourt must take the upper term times three as a minimum [sentence]."