P. v. Miranda

Filed 1/14/09 P. v. Miranda CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from a judgment of the Los Angeles County Superior Court,

Michael A. Cowell, Judge. Affirmed.

Rita L. Swenor, under appointment by the Court of Appeal for Defendant and Appellant.

No appearance for Plaintiff and Appellant.

___________________________

Following a shooting incident outside a high school gymnasium, a jury convicted Miguel A. Miranda of three counts of assault with a firearm, with a finding as to each count that he personally used a firearm. Miranda admitted a prior strike.

The trial court sentenced Miranda to a second strike term of 18 years in prison as follows: a 4-year high term for one assault, doubled to 8 years for the prior strike, plus a consecutive 10-year term for the firearm enhancement under Penal Code section 12022.5, subdivision (a), with concurrent sentences on the remaining counts. Miranda appealed.

Last year, we issued an opinion in which we found that Mirandas prior juvenile adjudication for criminal threats did not constitute a strike. (People v. Miranda (Sept. 12, 2007, B191532) [nonpub. opn.].) In the same opinion, we found that the cause also needed to be remanded for resentencing to clarify whether the trial court understood that it had discretion to impose a term of three, four, or 10 years for the firearm enhancement under Penal Code section 12022.5, subdivision (a). (Ibid.)

On January 10, 2008, the trial court resentenced Miranda to 17 years eight months in prison as follows:

            Count Four: a 3-year mid term for assault with a firearm, plus a consecutive term of 10 year term for the ancillary firearm enhancement under Penal Code section 12022.5, subdivision (a);

            Count Five: a consecutive 1-year term (1/3 the mid-term) for assault with a firearm, plus a consecutive term of 16 months (1/3 the mid-term) for the ancillary firearm enhancement under Penal Code section 12022.5, subdivision (a);

            Count Six: a consecutive 1-year term (1/3 the mid-term) for assault with a firearm, plus a consecutive term of 16 months (1/3 the mid-term) for ancillary firearm enhancement under Penal Code section 12022.5, subdivision (a).

Miranda filed a timely notice of appeal, and we appointed counsel to represent him on appeal. On October 27, 2008, Mirandas appointed counsel filed an opening brief in which no issues were raised. On October 28, 2008, we notified Miranda by letter that he could submit within 30 days any ground of appeal, argument or contention which he wished us to consider. Miranda has not responded to our letter. We have independently reviewed the record, and are satisfied that Mirandas appointed counsel has fulfilled his duty, and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436; People v. Kelly (2006) 40 Cal.4th 106.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

FLIER, Acting P. J.

ONEILL, J.*

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* Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.