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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065228
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. Nos. F11906070
                   v.                                                              & F11903435)

ROBERT LEE LOCKHART,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior 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.
                                      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 summarizes 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.
                                           FACTS2
Case No. F11903435
       On the afternoon of April 15, 2011, Edgar Flores went to Westside Market on
South Elm in Fresno County to cash a check for approximately $1140. As the clerk
counted the cash for Flores, two men entered the market. One man walked 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 him. They beat him,
pulled at his clothing, put their 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 checked Flores’s pockets again and took his cell
phone. The three men ran away.
       During the investigation, the officers found defendant’s fingerprints on Flores’s
car door. The officers showed photographic lineups, which included defendant’s picture,



       1   All further statutory citations are to the Penal Code unless otherwise indicated.
       2Given defendant’s no contest pleas, the following facts are from the preliminary
hearing and probation report.



                                               2.
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 videotape. Flores identified defendant at the
preliminary hearing.
       On June 1, 2011, defendant was arrested for this offense.
       On August 23, 2011, an information was filed in the Superior Court of Fresno
County charging defendant with the second degree robbery of Flores.
Case No. F11906070
       On September 20, 2011, officers with the Violent Crimes Impact Team were
patrolling an area known for narcotic sales, robberies, and thefts. They observed
defendant and several other men loitering at a bus stop. As the officers drove past the bus
stop, defendant walked away, reached into his waistband, and threw a black handgun
over a fence. The officers detained defendant, and then checked the other side of the
fence. They found a .380-caliber 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 complaint was filed which charged 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 heard 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 contest to second degree robbery in case
No. F11903435. He also pleaded no contest to carrying a concealed weapon and
admitted the on-bail enhancement in case No. F11906070, for a stipulated term of four



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years eight months in both cases. The court dismissed the remaining charges, along with
the allegations in an unrelated case (No. F12901347).
       On June 1, 2012, the court sentenced defendant to the lower term of two years for
second degree robbery, plus eight months (one-third the midterm) for carrying a
concealed weapon, and two years for the on-bail enhancement, for an aggregate term of
four years eight months. Defendant was awarded 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 timely 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 declaration of appellate counsel indicating defendant
was advised he could file his own brief with this court. By letter on September 25, 2012,
we invited defendant to submit additional briefing. To date, he has not done so.
       Defendant has failed to obtain a certificate of probable cause and therefore cannot
challenge the underlying validity of his pleas. (People v. Panizzon (1996) 13 Cal.4th 68,
77-79.)
       After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
                                     DISPOSITION
       The judgment is affirmed.




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