Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06909721. James R. Oppliger, Judge.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
Pursuant to a plea agreement, appellant Dwayne Thomas Waller pled no contest to second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and admitted a Penal Code section 12022.5, subdivision (a) enhancement allegation. Consistent with the plea agreement, the court imposed a six-year prison term, consisting of the three-year midterm on the substantive offense and the three-year lower term on the enhancement.
Penal Code section 12022.5, subdivision (a) provides for an additional and consecutive term of 3, 4 or 10 years for personal use of a firearm in the commission of a felony, except where use of a firearm is an element of the offense.
Appellant requested the court issue a certificate of probable cause (Pen. Code, § 1237.5). The court denied the request.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Appellant himself submitted a brief to this court in which he challenges the imposition of the firearm-use enhancement and the validity of his plea and admission. We will affirm.
Our factual statement is taken from the report of the probation officer.
On December 7, 2006, Esteban Aguilar, an attendant at a recycling business, reported to police that in the morning, a Black male approached him; demanded first the attendant’s cellular telephone and then money; grabbed the cash box containing $30; and fled on foot.
Further references to dates of events are to dates in 2006.
On December 13, Jose Perez reported to police the following. While working that afternoon as an attendant at a recycling center, he was approached by two men, who announced they had guns and were going to rob Perez. Each man lifted his shirt, displaying the butt of a gun. The two men took $4.00 in cash from Perez and two cash boxes containing $106.00.
Appellant was initially charged with four counts of second degree robbery. He pled no contest to one count based on the events of December 13. The remaining counts were dismissed pursuant to the plea agreement.
On December 14, Esteban Aguilar reported to police the following. Earlier that afternoon, the same man who committed the December 7 robbery returned to the recycling business where Aguilar was working. Aguilar fled, and the man entered the recycling container and then left. Aguilar later discovered $36.14 had been taken.
On December 15, police staked out several recycling businesses in the area. At approximately noon, an officer observed a man enter a recycling business, approach the attendant and “point[] a finger at the attendant in an aggressive manner,” keeping his other hand “in the area of his waistband.” The man entered the recycling container, and emerged soon thereafter with the cash box in his hand. The box contained $41.97.
The officer called for backup assistance; the suspect got into a car, which then drove off; and police effected a stop of the vehicle. Appellant was the passenger. He “admitted to the robberies, but insisted that he never used a gun.”
DISCUSSION
Appellant first argues he was never in possession of a firearm and therefore, he suggests, the court erred in imposing the firearm-use enhancement. However, because appellant admitted the enhancement allegation, he may not raise this claim on appeal. (Cf. People v. Jones (1995) 10 Cal.4th 1102, 1109 [consideration of issues regarding guilt and innocence foreclosed by plea of guilty].)
Appellant also argues his sentence should be reduced because, he suggests, he did not enter his plea knowingly, voluntarily and intelligently. This claim is not cognizable on appeal because appellant did not obtain a certificate of probable cause. (People v. Pannizon (1996) 13 Cal.4th 68, 76 [challenge to validity of plea foreclosed by absence of certificate of probable cause].)
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.