P. v. Gomez
Filed 3/1/07 P. v. Gomez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ALLEN GOMEZ, Defendant and Appellant. | 2d Crim. No. B194108 (Super. Ct. No. 1183925) (Santa Barbara County) |
Richard Allen Gomez appeals the judgment following his no contest plea to assault by force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1))[1]and admission that he suffered a prior strike conviction in 1977 for second degree murder ( 187; 667, subds. (b) - (i); 1170.12, subds. (a) - (d).) Pursuant to the negotiated plea, the trial court sentenced appellant to two years state prison and doubled the sentence based on the prior strike conviction. ( 245, subd. (a)(1); 667, subds. (d)(1)-(e)(1); 1170.12, subds. (b)(1)-(c)(1).) Appellant was ordered to pay victim restitution ( 1202.4, subd. (f)), a $800 restitution fine ( 1202.4, subd. b)), and a $800 parole revocation fine ( 1202.45).
We appointed counsel to represent appellant in this appeal. After reviewing the record, counsel filed an opening brief raising no issues and requesting that this court independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
On January 29, 2007, we advised appellant that he had 30 days in which to submit a written brief or letter stating any contentions or arguments he wished us to consider. In February 2007, we received two supplemental letter briefs from appellant stating that the sentence violated his constitutional right to jury trial. (Cunninghan v. California(2007) 549 U.S. __ [127 S.Ct. 856].)
This contention is not supported by the record. (See e.g., People v. Kelly (2006) 40 Cal.4th 106, 126.) When the change of plea was entered, appellant waived jury trial, admitted suffering the prior strike conviction, and pursuant to the negotiated plea, received a two-year low term sentence which was doubled based on the prior strike conviction. The rule of Cunningham v. California, supra, does not apply to the use of prior convictions to increase the penalty for a crime. (Id., at p. __ [127 S.Ct. at p. 868]; see also Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455]; Blakely v. Washington (2004) 542 U.S. 296, 301 [159 L.Ed.2d 403, 412].)
We have reviewed the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
COFFEE, J.
Timothy J. Staffel, Judge
Superior Court County of Santa Barbara
______________________________
California Appellate Project , under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for Defendant and Appellant.
No appearance for Respondent.
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[1]All statutory references are to the Penal Code.
