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The People v. Gabriel Rodriguez

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT San Joaquin


August 8, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GABRIEL RODRIGUEZ, DEFENDANT AND APPELLANT.

Super. Ct. No. SF115742A

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

P. v. Rodriguez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Gabriel Rodriguez asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no arguable error and no entitlement to additional presentence credits. We will affirm the judgment.

I At about 5:00 a.m. on July 28, 2010, defendant approached the victim as she sat in her car. Defendant showed her a gun, ordered her to roll down her window, and threatened to shoot her. The victim rolled down her window.

Defendant demanded that the victim give him all her money. The victim said she had no money, but she had an ATM card. Defendant took her driver's license and escorted her to a mini-mart where she could withdraw money. Once inside the mini-mart and in front of the store clerk, defendant claimed it was just a joke.

In exchange for a stipulated state prison sentence of 17 years, defendant pleaded no contest to kidnapping (Pen. Code, § 207, subd. (a)), admitted personally using a firearm (Pen. Code, § 12022.53, subd. (b)), and also admitted a prior prison term (Pen. Code, § 667.5, subd. (b)) and a prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). In addition, defendant waived 14 days of his presentence custody credit and also waived his right to appeal matters other than sentencing issues.

Pursuant to the plea agreement, the trial court sentenced defendant to 17 years in prison: the low term of three years for kidnapping, doubled for the prior strike, plus ten years for using a firearm and one year for the prior prison term. The trial court awarded defendant 62 days of presentence credit (54 actual days and 8 conduct days). The remaining counts were dismissed. Defendant did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.)

II Appointed 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. (Wende, supra, 25 Cal.3d 436.) 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 elapsed, and we received no communication from defendant.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

We concur: RAYE , P. J. ROBIE , J.

20110808

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