P. v. Benavides
Filed 4/29/08 P. v. Benavides CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. MITCHELL BENAVIDES, Defendant and Appellant. | B201516 (Los Angeles County Super. Ct. No. KA076010) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.
Charles R. Khoury Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Mitchell Benavides appeals from the judgment entered following his no contest plea to count 1, assault on a police officer with a semiautomatic firearm (Pen. Code, 245, subd. (d)(2)) and his admission that he discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (c). He also admitted that he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)) and one prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a)(1). He was sentenced to prison for a total of 35 years, consisting of the low term of five years for count 1, doubled to 10 years by reason of the Three Strikes law, plus 20 years for the firearm enhancement and five years for the serious felony enhancement.[1] He requested but was denied a certificate of probable cause.[2]
The evidence from the preliminary hearing established that on July 10, 2006, at approximately 11:00 p.m., Los Angeles County Deputy Sheriff Jeff Montero was responding to a defraud an innkeeper call at Dennys Restaurant when he observed appellant, who matched the description of the suspect, walking away from the restaurant. Deputy Montero and his partner were in uniform and they exited their marked patrol car. When Deputy Montero asked appellant to come and talk to him, appellant immediately ran from the deputies. The deputies got back into their vehicle and followed appellant onto a service road that led to a driving range. At that point, appellant turned and pointed a handgun in the deputies direction and fired two rounds. Appellant was approximately 20 yards from the patrol vehicle and Deputy Montero saw the muzzle flashes.
After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On December 27, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied that no arguable issues exist. Penal Code section 1237.5 provides in pertinent part, [n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court. [T]wo types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.] (People v. Buttram (2003) 30 Cal.4th 773, 780.)
Appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
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[1] A second count of assault on a peace officer with a semiautomatic firearm (Pen. Code, 245, subd. (d)(2)) and one count of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)) were dismissed.
[2] As grounds for the issuance of a certificate of probable cause, appellant claimed he was denied effective assistance of counsel, he was denied new counsel on May 21, 2007, he did not understand the consequences of his plea agreement and he was pressured to sign the plea agreement.
