P. v. Cleveland

Filed 8/11/09 P. v. Cleveland 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Kyle William Cleveland pleaded guilty to robbery (Pen. Code,^[1] 211) and admitted an enhancement for personal use of a firearm ( 12022.5, subd. (a)). On appeal, appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We will affirm.

FACTS^[2]

At approximately 9:05 a.m. on April 24, 2007, deputies from the Tuolumne County Sheriffs Department were dispatched to a residence on Phoenix Lake Road, where Raymie Gamboa reported being the victim of a home invasion robbery. Gamboa was pregnant, and she was at home with her daughters, ages one and two years, and her nine-year-old nephew. Gamboas brother, Ruben Gonzales, also lived at the house, but he was not present during the incident.

Gamboa reported the incident began when a woman and two men arrived at her house. Gamboa recognized the woman as Andrea King, who was Gonzaless friend. King introduced Cleveland as her boyfriend. The other man was Justin Serio, and King said Serio was her boyfriends cousin. Cleveland, King, and Serio chatted with Gamboa; King talked about Gamboas brother; and they walked in and out of the house.

Gamboa finally asked them to leave. Cleveland produced a handgun, told Gamboa that she was being robbed, and warned her not to scream. Serio produced a knife and also threatened Gamboa. Serio produced twine and tied Gamboas hands behind her back. Serio tried to remove Gamboas rings but her fingers were swollen from the combined effect of her pregnancy and being tied up. The twine was removed, the rings were taken off her hand, and her hands were again bound.

At some point during the incident, Cleveland handed the gun to King, who appeared to become nervous. As the suspects prepared to leave the house, they ordered Gamboa to the floor and wrapped her mouth, nose, and hands with packing tape. Gamboa reported the suspects left in an older model, midnight blue SUV-type vehicle. Gamboa was able to stand up and get help from her young nephew.

Shortly after Gamboa reported the robbery to the police, officers from the California Highway Patrol reported that the suspects vehicle had been involved in a collision on Highway 108 near Highway J59. The driver of the second vehicle said the SUV caused the accident, and a woman and two men got out of the vehicle and fled on foot. The SUV had been stolen the previous day in Modesto. The officers searched the SUV and found Gamboas drivers license and other items that had been stolen from her house.

Procedural History

On May 6, 2007, appellant was arrested on a warrant for the instant offenses. He also was arrested in Stanislaus County Superior Court case No. 1227276 and for violating parole. On May 6, 2008, he was sentenced in the Stanislaus County matter to 16 months for robbery ( 212.5, subd. (a)), and four years for personal use of a firearm ( 12022.5, subd. (a)).

On June 4, 2008, a complaint was refiled as the information in the Superior Court of Tuolumne County, charging Cleveland and King with count I, home invasion robbery ( 211); count II, burglary ( 459); count III, criminal threats ( 422); count IV, unlawfully taking or driving a vehicle, a 1996 Mitsubishi Montero (Veh. Code,  10851, subd. (a)); and count V, cutting a utility line (Pen. Code,  591). As to counts I through III, it was further alleged that Cleveland and King personally used a firearm ( 12022.5, subd. (a)) & 12202.53, subd. (b)). In counts I through IV, it was alleged that King had served a prior prison term ( 667.5, subd. (b)).

King pleaded guilty to robbery and admitted the personal use enhancement and was sentenced to 10 years in prison.

On August 11, 2008, Cleveland pleaded guilty to count I, home invasion robbery, and admitted the section 12022.5, subdivision (a) personal use enhancement. The trial court granted the prosecutions motion to dismiss the remaining charges and enhancements.

On September 8, 2008, the trial court imposed the upper term of nine years for the home invasion robbery, with a consecutive four-year term for the personal use enhancement. The trial court also reimposed and corrected the sentence in Stanislaus County case No. 1227276, pursuant to the terms of the plea agreement, for a subordinate term of 16 months (one-third the midterm) for robbery ( 212.5, subd. (a)) and a consecutive term of 16 months (one-third the midterm) for the personal use enhancement ( 12022.5, subd. (a)). Clevelands aggregate term was 15 years eight months.

On November 5, 2008, Cleveland filed a notice of appeal. On November 8, 2008, the trial court denied his request for a certificate of probable cause.

DISCUSSION

Clevelands appointed counsel has filed an opening brief that adequately summarizes the facts and adequately cites to the record, raises no issues, and asks this court to review the record independently. (People v. Wende, supra, 25 Cal.3d 436.) By letter dated May 6, 2009, this court invited Cleveland to submit additional briefing and state any grounds of appeal he may wish this court to consider. Cleveland has not done so.

Our independent review discloses no reasonably arguable appellate issues. [A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsels professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

DISPOSITION

The judgment is affirmed.

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^* Before Cornell, Acting P.J., Hill, J. and Kane, J.

^[1]All further statutory citations are to the Penal Code unless otherwise indicated.

^[2]Given Clevelands waiver of a preliminary hearing and his guilty plea in this case, the following facts are taken from the probation report.