Filed 8/27/13 P. v. Lockhart 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ROBERT LEE LOCKHART, Defendant and Appellant. F065228 (Fresno Super. Ct. Nos. F11906070 & F11903435)



### OPINION

THE COURT * APPEAL from a judgment of the Supe rior Court of Fresno County. Don D. Penner, 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-

* Before Cornell, Acting P.J ., Kane, J. and Detjen, J.2. INTRODUCTION Appellant/defendant Robert Lee Lockhart pleaded no contest in two separate cases to second degree robbery (Pen. Code, 1 § 211) and carrying a concealed weapon (§ 12025, subd. (b)(6), and admitted an on -bail enhancement (§ 12022.1 ). He was sentenced to the stipulated term of four years eight months. On appeal, his appellate counsel has filed a brief which summarize s the facts, with citations to the record, raises no issues, and asks this court to independently review the record. ( People v. Wende (1979) 25 Cal.3d 436 ( Wende ).) We will affirm. FACTS 2
Case No. F11903435 On the afternoon of April 15, 2011, Edga r Flores went to Westside Market on South Elm in Fresno County to cash a check fo r approximately $1140. As the clerk counted the cash for Flores, two men entered th e market. One man wa lked by the counter and saw the cash, and the two men left the store. Flores took his money and got into his car, which was parked in front of the market. As he sat in his vehicle, three men attacked and assaulted hi m. They beat him, pulled at his clothing, put th eir hands in his pockets, and demanded that he give the money to them. During the beating, Flores dropped the cash, and one of the assailants picked up the money. Another assailant ch ecked Flores’s pockets again and took his cell phone. The three men ran away. During the investigation, the officers found defendant’s finge rprints on Flores’s car door. The officers showed photographic lineups, which included defendant’s picture,

1 All further statutory citations are to th e Penal Code unless otherwise indicated.
2 Given defendant’s no contes t pleas, the following fact s are from the preliminary hearing and probation report.3. to Flores and two store clerks. Flores and the clerks identified defendant as one of the three men who assaulted Flores and ran away with his money. Defendant was also observed on the store’s surveillance videotap e. Flores identified defendant at the preliminary hearing. On June 1, 2011, defendant wa s arrested for this offense. On August 23, 2011 , an information was filed in the Superior Court of Fresno County charging defend ant with the second degree robbery of Flores. Case No. F11906070 On September 20, 2011, o fficers with the Violent Crimes Impact Team were patrolling an area known for narcotic sales, robberies, and thef ts. They observed defendant and several other men loitering at a bus stop. As the office rs drove past the bus stop, defendant walked away, reached into his waistband, and threw a black handgun over a fence. The officers detained defendan t, and then checked the other side of the fence. They found a .380-ca liber semiautomatic handgun on the ground. It was loaded with one live round in the chamber and five live rounds in the magazine. Defendant was not the registered owner of the handgun. Defendant was on bail in the robbery case. On October 20, 2011, a comp laint was filed which charge d defendant with count I, carrying a concealed weapon (§ 12025, subd. (b)(6)), and count II, carrying a loaded firearm registered to another individual (§ 12031, subd. (a)(2 )(F)), with an on-bail enhancement (§ 12022.1). Plea and sentencing proceedings On March 22, 2012, the court hear d and denied defendant’s motion for appointment of a new attorney, pursuant to People v. Marsden (1970) 2 Cal.3d 118. On April 13, 2012, defendant pleaded no co ntest to second degree robbery in case No. F11903435. He also pleaded no cont est to carrying a concealed weapon and admitted the on-bail enhancement in case No. F 11906070, for a stipulated term of four4. years eight months in both cases. The cour t dismissed the remainin g charges, along with the allegations in an unre lated case (No. F12901347). On June 1, 2012, the court sentenced defe ndant to the lower term of two years for second degree robbery, plus ei ght months (one-third th e midterm) for carrying a concealed weapon, and two year s for the on-bail enhancement, for an aggregate term of four years eight months. Defendant was awarde d 123 days of presentence credit. As to each case, the court imposed a $240 restitution fine (§ 1202.4, subd. (b)); a suspended $240 parole revocation fine (§ 1202.45); a $40 court security fee; and a $30 criminal conviction assessment. The court reserved jurisdiction as to victim restitution. On June 22, 2012, defendant filed tim ely notices of appeal in both cases. DISCUSSION As noted above, defendant’s appellate counsel has filed a Wende brief with this court. The brief also includes the declara tion of appellate counsel indicating defendant was advised he could file his own brief with th is court. By letter on September 25, 2012, we invited defendant to subm it additional briefing. To date, he has not done so. Defendant has failed to obtain a certific ate of probable cause and therefore cannot challenge the underlying va lidity of his pleas. ( People v. Panizzon (1996) 13 Cal.4th 68, 77-79.) After independent review of the reco rd, we find that no reasonably arguable factual or legal issues exist. DISPOSITION The judgment is affirmed.