>P. v. Valdez



















Filed 6/20/12 P. v. Valdez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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. RUBEN VALDEZ, Defendant and Appellant.

F063068 (Super. Ct. No. VCF148363) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County. Joseph A. Kalashian, Judge.

Victor J.
Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

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

-ooOoo-



Appellant, Ruben Valdez, appeals
following a modification of his sentence pursuant to the Supreme Court’s
decision in People v. Lopez (2005) 34
Cal.4th 1002 (Lopez). Following href="http://www.mcmillanlaw.com/">independent review of the record
pursuant to People v. Wende (1979) 25
Cal.3d 426 (Wende), we affirm.

INTRODUCTION

In 2006, Valdez was convicted of
attempted first degree murder (count
1/Pen. Code, §§ 664 & 187),href="#_ftn2"
name="_ftnref2" title="">^[1] shooting
at an occupied motor vehicle (count 2/§ 246), carrying a loaded firearm
(count 3/§ 12031, subd. (a)(1)), unlawful
firearm activity (count 4/§ 12021, subd. (e)), resisting an executive
officer (count 5/§ 69), and resisting arrest (count 6/§ 148, subd.
(a)(1)). Additionally, in counts 1
through 5, a gang allegation, pursuant to section 186.22, subdivision (b), was
found true; in count 6, a gang allegation, pursuant to section 186.22,
subdivision (d), was found true, which converted that offense from a
misdemeanor to a felony; and an arming enhancement (§ 12022.53, subd. (d)) and
a great bodily injury enhancement (§ 12022.7, subd. (a)) were found true in
counts 1 and 2.

Valdez’s
original sentence in count 1 included a 10-year gang enhancement, pursuant to
section 186.22, subdivision (b)(1)(C),href="#_ftn3" name="_ftnref3" title="">^[2] and a minimum parole eligibility term of 15
years pursuant to section 186.22, subdivision (b)(5).href="#_ftn4" name="_ftnref4" title="">^[3]

In Lopez, supra, 34 Cal.4th 1002, the Supreme Court held that a
defendant who commits a crime for the benefit of a href="http://www.fearnotlaw.com/">criminal street gang and is sentenced to
a life term is not subject to a 10-year enhancement pursuant to section 186.22,
subdivision (b)(1)(C), but is subject to the 15-year minimum parole eligibility
term pursuant to section 186.22, subdivision (b)(5). (Lopez,
supra, 34 Cal.4th at pp.
1006-1007.) Therefore, under >Lopez, the 10-year enhancement imposed
in count 1, pursuant to section 186.22, subdivision (b)(1)(C), was unauthorized.

THE CURRENT APPEAL

On February 17, 2011, the Supreme
Court sent a letter to the Attorney General asking for a response to an
allegation in a petition for habeas corpus filed by Valdez that his sentence
was “unauthorized because he received both a 10-year sentence pursuant to …
section 186.22, subdivision (b)(1)(C) as well as a minimum parole term of 15
years pursuant to … section 186.22, subdivision (b)(5). (See People
v. Lopez[, supra,] 34 Cal.4th
1002.”

In an informal response filed on
March 17, 2011, the Attorney General conceded that Valdez was entitled to have
his sentence modified.

On June 22, 2011, the Supreme Court
issued to the Department of Corrections and Rehabilitation an order to show
cause why Valdez was not entitled to have his sentence modified pursuant to >Lopez, supra, 34 Cal.4th 1002.

On July 27, 2011, the trial court
resentenced Valdez as follows: life with
the possibility of parole on his attempted murder conviction in count 1, with a
minimum of 15 years before parole eligibility pursuant to section 186.22,
subdivision (b)(5), 25 years to life on the arming enhancement in that count,
and a stayed three-year term on the great bodily injury enhancement in that
count; a stayed, aggregate 40 years to life on count 2 (15 years to life
pursuant to section 186.22, subd. (b)(4) on his conviction for shooting into an
occupied vehicle conviction and 25 years to life on the arming enhancement in
that count); an aggregate five-year term on Valdez’s carrying a loaded firearm
conviction in count 3 (the middle term of two years on the substantive offense
and a three-year term on the gang allegation in that count); a stayed,
aggregate five-year term on his unlawful firearm activity conviction in count 4
(the middle term of two years on the substantive offense and a three-year term
on the gang allegation in that count); a consecutive aggregate 20-month term on
his resisting an executive officer conviction in count 5 (eight months, i.e.,
one-third the middle term of two years on the substantive offense and one year,
i.e., one-third the middle term of three years, on the gang allegation in that
count); and a stayed two-year term on his resisting arrest conviction in count
6.

Valdez’s appellate counsel has
filed a brief which summarizes the facts, with citations to the record, raises
no issues, and asks this court to independently review the record. (Wende,
supra, 25 Cal.3d 436.) Valdez has
not responded to this court’s invitation to submit additional briefing.

Following
an independent review of the record we find that no reasonably href="http://www.mcmillanlaw.com/">arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.