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The People v. Michael W. Fothe

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento


March 14, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL W. FOTHE, DEFENDANT AND APPELLANT.

Super. Ct. No. 10F03412

The opinion of the court was delivered by: Duarte,j.

P. v. Fothe CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appointed counsel for defendant Michael W. Fothe has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment.

BACKGROUND

On May 20, 2010, defendant entered the Hollywood Rock store in Citrus Heights and selected items to purchase. When the cashier opened the register, defendant brandished a handgun and demanded all the money. The cashier gave defendant $100; as defendant fled the scene, he pointed his handgun at two witnesses. These same witnesses obtained the license plate number of his car.

Defendant entered a plea of no contest to second degree robbery (Pen. Code, § 211) and admitted a strike prior--a 1993 conviction for assault with a firearm on a peace officer/fire fighter (Pen. Code, §§ 245, subd. (d)(1), 667, subds. (b)-(i), 1170.12)--in exchange for a sentencing lid of 10 years and the dismissal of three additional robbery and/or attempted robbery cases and a Harvey waiver.*fn1 After denying defendant's motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the trial court sentenced defendant to state prison for the upper term of five years, doubled for the strike prior.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal pursuant to Wende, supra. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant. Having undertaken an examination of the entire record, including allocation of credit, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

We concur: ROBIE , Acting P.J. BUTZ ,J.


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