P. v. Cano
Filed 8/14/07 P. v. Cano CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. GABRIEL CANO, Defendant and Appellant. | C053538 (Super. Ct. No. 02F08065) |
On July 14, 2003, a jury convicted defendant Gabriel Cano of attempted murder (Pen. Code, 187, subd. (a)/664--count one)[1]and assault with a firearm ( 245, subd. (a)(2)--count two). As to count one, the jury found that defendant personally and intentionally discharged a firearm. ( 12022.53, subds. (c) & (d).) As to both counts, the jury also found defendant personally used a firearm ( 12022.5, subd. (a)(1), 12022.53, subd. (b)) and inflicted great bodily injury ( 12022.7, subd. (b)). He was sentenced to an aggregate prison term of 25 years to life plus seven years. The court imposed a restitution fine of $4,000 under section 1202.4, subdivision (b). The court also ordered defendant to pay $1,000 to the victim under section 1202.4, subdivision (f) and $8,802.77 to the Victims of Violent Crime Program.
Defendant appealed his conviction on October 28, 2003, contending the trial court erroneously denied his motion to suppress evidence of the victims pretrial photographic identification and the court prejudicially erred in admitting the testimony of the prosecutions expert on gang behavior. (People v. Cano (Dec. 21, 2004, C045389 [nonpub opn.].) We corrected a clerical error in the judgment and otherwise affirmed. (Ibid.)
On June 20, 2006, defendant filed a motion in the Sacramento Superior Court to modify the restitution fines. He contended the trial court improperly failed to consider his ability to pay the fines and claimed the appropriate remedy was to modify the fines to $200. On August 3, 2006, the trial court denied the request for modification. The court found defendant had forfeited the issue by failing to object and the court was not required to make an ability to pay determination on the record.
On July 6, 2006, defendant filed a Petition for Writ of Habeas Corpus in the Sacramento Superior Court. In his writ, he argued that (1) under the Sacramento County court-appointed rating system, his attorney was not qualified to represent him, and (2) his attorney was ineffective in his representation, as he did not properly investigate his witness identification. The court denied the petition. The court found that defendant had not demonstrated his attorney was not properly rated to handle his case or that he had a right to an attorney with a particular rating. The court also found defendant had not demonstrated prejudice with respect to his claim of ineffective assistance of counsel.
On August 18, 2006, defendant filed a notice of appeal for both the denial of his requested modification and the denial of his writ of habeas corpus.[2]
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
Disposition
The orders are affirmed.
DAVIS, Acting P.J.
We concur:
ROBIE , J.
BUTZ , J.
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[1] Hereafter, undesignated section references are to the Penal Code.
[2] Because no appeal lies from the denial of a petition for writ of habeas corpus, a prisoner whose petition has been denied by the superior court can obtain review of his claims only by the filing of a new petition in the Court of Appeal. (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7.)
