P. v. Barrera
Filed 11/2/07 P. v. Barrera CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. GERARDO BARRERA, Defendant and Appellant. | F051615 (Super. Ct. No. MCR025941B) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffat, Judge.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Appellant, Gerardo Barrera, was charged by criminal complaint filed August 8, 2006,[1]with nine counts of second degree robbery (Pen. Code, 211, 212, subd. (c)),[2]two counts of attempted second degree robbery ( 211, 212, subd. (c), 664), one count of assault with a deadly weapon or by means of force likely to great bodily injury ( 245, subd. (a)(1)), and one count of battery with serious bodily injury ( 243, subd. (d)). Pursuant to a plea agreement, on September 27, the court granted the prosecutions motions to amend the complaint, and appellant pled no contest to three counts of grand theft from a person ( 487, subd. (c); counts 2, 4, 5) and individual counts of second degree robbery (count 1) and assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); count 8).
On November 2, the court imposed a prison term of five years, consisting of the two-year lower term on the robbery, eight months on each of the grand theft counts, and one year on the assault. The court awarded appellant 102 days of presentence credits.
Appellant did not request, and the court did not issue, a certificate of probable cause ( 1237.5).
Appellants 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. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this courts invitation to submit additional briefing.
FACTS[3]
Robbery One Count
Ramon Ramirez told police the following. On July 26 at approximately 5 p.m. he was using a pay telephone when a male adult approached him, asked for directions to Bakersfield and, as Ramirez was about to respond, removed a gun from his waistband and ordered Ramirez to hand over his wallet. Ramirez complied. He had $1,500 in his wallet. Ramirez turned to see where the suspect had gone, and saw the robber seated in a parked vehicle.
The robber was later identified as appellant.
Grand Theft from a Person Three Counts
Raul Lucero told police the following. On July 30 at approximately 5:54 p.m. he was walking through an alley when two males approached him. One of them removed a handgun from his waistband, pointed it at Lucero and demanded his wallet. Lucero handed the gunman his wallet, which contained $900. The gunman then struck Lucero in the face with the gun. Lucero fell to the ground, and the gunman and his companion began kicking Lucero. The two attackers then fled on foot and got into a parked car, which then drove off.
Appellant was later identified as one of the robbers.
Adan Hidalgo told police the following. On July 31, he was walking along South C Street in Madera when a vehicle pulled up beside him and an adult male in the back seat asked Hidalgo for directions to Los Banos. Hidalgo turned to point out the direction, and as he turned back he saw that his interlocutor was out of the vehicle and pointing a handgun at Hidalgos head. Hidalgo handed the man his telephone, and the man demanded money. Hidalgo gave the man $50, which he had in his pocket. The man ran back to the vehicle; as he did, so a second person fired a gun at Hidalgo. Mr. Hidalgo provided a description of the defendant and his accomplice to [police].
On July 31, police, responding at approximately 1:40 p.m. to a call concerning a robbery, made contact with Guillermo Venegas, who stated the following. He [drove] his vehicle to a residence to drop off his two passengers, Mr. Garcia and Mr. Miramon. He stopped, but before his passengers could get out of the car, two men approached. One asked for directions, and shortly thereafter, each pulled a handgun from his waistband. One of the men demanded money, and reached into Venegass car and took a cell phone and the car keys. The other man took money from Garcia and Miramon.
Appellant was later identified as one of the robbers.
Aggravated Assault One Count
Thomas Estrada told police the following. On August 2 he was walking along 11th Street in Madera when a vehicle stopped next to him. Two men got out of the vehicle. Each pointed a handgun at Estrada. Estrada put up his hands and said, wait a minute, but the two men fired approximately 10 shots at Estrada.
Police learned from a nurse at University Medical Center that pellet[s] the size of a bullet were found lodged in Estradas right arm and right cheek, and that Estrada suffered a fractured eye socket.
DISCUSSION
Upon independent review of the record, we have determined as follows: The report of the probation officer indicates that Armando Miramon was the victim of one
of the counts of grand theft of which appellant was convicted, Miramon reported that $380 was taken from him, Thomas Estrada was the victim of the aggravated assault of which appellant was convicted, and he suffered physical injuries in the commission
of that offense but reported no loss of property. The court, however, ordered restitution ( 1202.4, subd. (f)) to Estrada in the amount of $380, did not award restitution to Miramon, and retained jurisdiction with respect to restitution for Estrada.
From the foregoing, it is apparent the court mistakenly awarded $380 in restitution to Estrada and inadvertently failed to award restitution in that amount to Miramon. We will modify the judgment to provide as follows: the award of $380 in restitution to Estrada is stricken and Miramon is awarded restitution in the amount of $380.[4]
Following independent review of the record, we have concluded that with the exception of the issue discussed above, no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is modified to provide that the award of $380 in restitution to Thomas Estrada is stricken and Armando Miramon is awarded restitution in the amount of $380. As modified, the judgment is affirmed.
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*Before Vartabedian, Acting P.J., Harris, J., and Levy, J.
[1] All references to dates of events are to dates in 2006.
[2] Except as otherwise indicated, all statutory references are to the Penal Code.
[3] The factual statement is taken from the report of the probation officer.
[4] We advised the parties, pursuant to Government Code section 68081, that we proposed, were we to otherwise affirm the judgment, to modify the judgment as set forth above. Neither party responded to our invitation to submit briefing on this issue.
