P. v. Calixio
P. v. Calixio
Filed 8/11/08 P. v. Calixio CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
PEDRO RAMIREZ CALIXIO,
Defendant and Appellant. |
F053919
(Super. Ct. No. F04903761-5)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
A jury found Pedro Ramirez Calixio guilty of voluntary manslaughter and found the allegation true that he committed the offense with a knife. (Pen. Code, 192, subd. (a), 12022, subd. (b)(1).) The trial court imposed an aggregate 12-year term an 11-year aggravated term on the voluntary manslaughter and a consecutive one-year enhancement on the knife allegation and he appealed.
In our first opinion, we rejected Calixios arguments that the admission for the purpose of impeachment of a misdemeanor spousal battery prior mistakenly thought to be a felony prejudiced him and that the imposition of the upper term violated his federal constitutional jury trial right. (People v. Calixio (July 19, 2006, F047511 [nonpub. opn.] [2006 Cal. App. LEXIS 6210, 11-24; 2006 WL 2005461, 4-8].) After the United States Supreme Court issued Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the California Supreme Court vacated the judgment and remanded for reconsideration in light of Cunningham.
In our second opinion, we again rejected Calixios argument that the admission for the purpose of impeachment of a misdemeanor spousal battery prior mistakenly thought to be a felony prejudiced him but reversed the sentence only and remanded for resentencing in light of Cunningham. (People v. Calixio (July 13, 2007, F047511 [nonpub. opn.] [2007 Cal. App. LEXIS 5703, 2, 11-26; 2007 WL 2019800, 1, 4-10].) On remand, the trial court acknowledged that his spousal abuse prior was a misdemeanor, not a felony; disregarded all facts and circumstances inconsistent with the evidence at trial; found him not a suitable candidate for probation because of his prior criminal history; found circumstances in aggravation outweigh[ed] any circumstances in mitigation; and imposed the identical sentence as before. He appealed.
On February 25, 2008, Calixios appellate counsel filed an appellants opening brief requesting us to conduct an independent review of the entire record, which he noted he sent to Calixio, and informing us that he advised him of his right to file a supplemental brief within 30 days. On the same date, our clerk/administrator advised him of his right to submit a letter within 30 days stating any grounds of appeal he wanted us to consider. On March 21, 2008, he filed a letter asking us to consider at [his] re-sentence that [his] prior domestic violence conviction was not a felony; however it was considered as one, and thus increased [his] present sentence.
Having examined the entire record in light of both the appellants opening brief and Calixios letter, we are satisfied that his appellate counsel has fully complied with his professional responsibilities and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.
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* Before Vartabedian, Acting P.J., Gomes, J. and Hill, J.
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