P. v. O’Bannon







Filed 12/8/11 P. v. O’Bannon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PEOPLE, Plaintiff and Respondent, v. PIERRE L. O’BANNON, Defendant and Appellant.

F062753 (Super. Ct. No. 10CM7577) OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-

STATEMENT OF THE CASE
On April 22, 2011, appellant, Pierre L. O’Bannon, was charged in an amended information with committing a battery on a correctional officer (Pen. Code, § 4501.5, count one),^[1] assaulting a correctional officer by means likely to cause great bodily injury (§ 4501, count two), and using threats or violence to deter an executive officer (§ 69, count three). It was further alleged that in the commission of appellant’s offenses, he inflicted great bodily injury on the victim, had seven prior serious felony convictions within the meaning of the three strikes law (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)‑(i)), and was subject to enhancements for seven prior serious felony convictions (§ 667, subd. (a)(1)).
Prior to the beginning of his trial on April 25, 2011, appellant made a Marsden^[2] motion that was denied by the trial court. Before a jury was empanelled, the parties reached a plea agreement. The prosecutor offered two alternative plea bargains. The trial court carefully explained these alternatives to appellant. The parties agreed appellant would admit count two and receive a stipulated upper term sentence of six years, doubled pursuant to the three strikes law to twelve years.
When asked if he understood the terms of the plea agreement, appellant replied, “Yes, your Honor.” The court reviewed the consequences of appellant’s plea and advised appellant of his constitutional rights pursuant to Boykin/Tahl.^[3] Appellant waived his rights, stated he understood everything the court discussed with him, indicated he had no questions, and pled no contest to count two. Appellant admitted a prior serious felony conviction within the meaning of the three strikes law. The parties stipulated that there was a factual basis for the plea.^[4]
Appellant waived his right to a formal probation report. The court declined defense counsel’s request to strike the prior serious felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court sentenced appellant to prison for the upper term of six years and doubled it to twelve years pursuant to the three strikes law. Appellant’s sentence was made consecutive to the one he was serving when he committed the instant offense. Appellant filed a timely notice appeal. The trial court denied his request for a certificate of probable cause.
Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We will affirm the judgment.
APPELLATE COURT REVIEW
Appellant’s 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. (Wende, supra, 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 August 23, 2011, 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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