P. v. Thornbrough

Filed 2/16/10 P. v. Thornbrough 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kern County. Colette M. Humphrey, Judge.

Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

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STATEMENT OF THE CASE

On April 23, 2009, appellant, Robert M. Thornbrough, entered into a plea agreement wherein he would admit committing second degree robbery (Pen. Code, 212.5, subd. (c), count 1) and possession of methamphetamine (Health & Saf. Code,  11377, subd. (a), count 9). The complaint alleged three prior prison term enhancements and two prior serious felony convictions. In exchange for his no contest plea, three felony allegations would be dismissed (counts 3, 7, and 8), one misdemeanor allegation would be dismissed (count 10), and appellant would received a stipulated prison term of three years.^[1]

Appellant executed an advisement of rights, waiver, and plea form acknowledging and waiving his constitutional rights pursuant to Boykin/Tahl.^[2] The plea form set forth the terms of the plea agreement and advised appellant of the consequences of his plea. At the change of plea hearing, appellant acknowledged that he signed and initialed the plea form. Appellant told the court he had gone through his rights with his attorney and had no questions about them. Appellant waived his rights. The parties stipulated the factual basis for the plea was in the police report.^[3] The court reviewed the consequences of a change of plea with appellant.

Appellant pled no contest to counts 1 and 9. The court granted the prosecutors motion to dismiss the remaining allegations against appellant. At the sentencing hearing on May 21, 2009, the court found appellant had a mitigating factor because he pled at an early stage of the proceedings. As aggravating sentencing factors, the court found appellant had numerous convictions as an adult, he was on parole when he committed these offenses, and his prior performance on probation and parole was unsatisfactory. The court sentenced appellant to prison on count 1 for three years and to a concurrent prison term of two years on count 9. The court imposed a restitution fine and granted applicable custody credits.

Appellant obtained a certificate of probable cause and filed a timely notice of appeal.

APPELLATE COURT REVIEW

Appellants appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) 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 October 14, 2009, 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 Levy, Acting P.J., Cornell, J., and Hill, J.

^[1] The remaining allegations in the complaint did not apply to appellant but to his codefendants.

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

^[3] The facts are derived from the probation officers report. Sergio Herrera rode into an alley in a vehicle also occupied by appellant and a codefendant Medina. When Herrera left the vehicle, he was physically assaulted by appellant and Larry Garza, another codefendant. One of the defendants pulled out a knife and ordered Herrera to give them his wallet. They also took his sweatshirt and cellular phone. Herrera broke free and fled on foot. Garza jumped into the vehicle and began driving. He was soon chased by police, driving at excessive speed. The vehicle became disabled and stopped. Appellant and Garza fled on foot. A baggie of suspected methamphetamine was found in the front seat of the vehicle.