P. v. Sauceda

Filed 12/8/08 P. v. Sauceda 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Tulare County. Gary L. Paden, Judge.

S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

FACTS AND PROCEEDINGS

On July 27, 2006, appellant, Ismael Sauceda, was charged in an information with first degree murder (Pen. Code,  187, subd. (a)),^[1]being a principal who intentionally discharged a firearm proximately causing the death of the victim ( 12022.53, subds. (d) & (e)(1)), and a gang enhancement ( 186.22, subd. (b)(1)(C)).

On January 16, 2007, appellant executed a sealed written plea agreement. Under the agreement, count two would be added alleging that appellant was an accessory after the fact of the homicide. Appellant was to testify truthfully at the trial of his codefendant. In exchange, he would be sentenced to a term of five years. The remaining allegations were to be dismissed, execution of sentence stayed, and appellant placed on five years probation.

At the hearing, the court advised appellant of the consequences of his constitutional rights pursuant to Boykin/Tahl.^[2] Appellant acknowledged that he understood his rights and gave up each right. The parties stipulated that there was a factual basis for the plea. Appellant pled no contest to count two, being an accessory after the fact, and admitted the gang enhancement. The court found a factual basis for the plea. The court noted appellants sentence for being an accessory after the fact was two years, the gang enhancement was three years, and that the sentence would be stayed.

On April 3, 2008, the court imposed a prison term of two years on count two and a consecutive term of three years for the gang enhancement. The court stayed execution of sentence, placing appellant on felony probation for four years. The court ordered appellant to serve 365 days in county jail, but noted appellant was entitled to 549 days spent in custody. The court imposed a $200 restitution fine and ordered victim restitution.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on August 27, 2008, we invited appellant to submit additional briefing. To date, he has not done so.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Dawson, J., and Kane, J.

^[1] Unless otherwise noted, all statutory references are to the Penal Code.

^[2]Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.