Filed 2/2/15 P. v. Whitehead CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

THE PEOPLE,
                                                                                           F068261
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F13903356)
                   v.

JERRY RAY VON WHITEHEAD,                                                                 OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Alan M.
Simpson, Judge.
         J. Edward Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-



         *   Before Levy, Acting P.J., Cornell, J. and Poochigian, J.
                                      INTRODUCTION
       Appellant/defendant Jerry Ray Von Whitehead pleaded no contest to carjacking
(Pen. Code, § 215, subd. (a))1 and was sentenced to five years in prison. 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
       On the afternoon of March 25, 2013, Michael Servantes went to “Sierra’s” house
near First and McKinley in Fresno. He had arranged to receive a massage from her.3 At
Sierra’s request, he brought soft drinks and fast food. Sierra invited Servantes into the
bedroom, and they spent 45 minutes together. Sierra poured some vodka into the soft
drink and gave it to Servantes. Servantes became lightheaded after he drank it and
thought Sierra might have put something else in the soda besides vodka.
       When Servantes and Sierra were in the bedroom, Sierra left twice and said she was
going to check on something. When she returned the second time, Servantes heard
banging on the front door. He looked through a window and saw some young men
outside. Sierra went to the door, spoke to one of the men, and then rejoined Servantes in
the bedroom. Servantes asked Sierra what was going on. Sierra said the man was her
brother, and she had taken care of it.
       About 10 minutes later, Servantes again heard someone banging on the front door.
Sierra went to the door, and Servantes saw two young men. Servantes decided to leave.



       1   All further statutory citations are to the Penal Code unless otherwise indicated.
       2The parties stipulated to the preliminary hearing transcript as the factual basis for
defendant’s no contest plea.
       3 According to the probation report, Servantes was a retired police officer and
hired Sierra to perform a sexual act. Servantes denied this at trial.



                                               2.
Servantes tried to get out of the house by climbing through the bedroom window, but
another young man was standing there.
       Servantes headed to the front door, walked onto the porch, and was surrounded by
two young men. Servantes later identified defendant as one of these men. Sierra was
talking to the two men. Servantes said he was leaving. Defendant pulled a
semiautomatic pistol from his pants, raised it at Servantes, and ordered him to turn over
his money. Sierra backed away, and the second man walked closer. Servantes tried to
dissuade defendant from robbing him. Servantes said he did not have much money, that
defendant was young, and it was not worth it.
       Defendant lowered the gun, and his accomplice became upset and asked what he
was doing. Defendant raised the gun and again pointed it at Servantes. Servantes tried to
run away by jumping over a hedge. He tripped and fell, and defendant hit him on the
head with the gun. Defendant and the second man were joined by two other men, and
they repeatedly hit Servantes.
       The assailants emptied Servantes’s pockets and took his cell phone, wallet, and
keys to Servantes’s Infinity sedan, which was parked in front of Sierra’s house. There
was about $20 in his wallet. The men also took Servantes’s fanny pack, which contained
a handgun. Servantes testified that defendant ended up with the car keys. Defendant got
into the driver’s side of the car, another man joined him, and they drove away in
Servantes’s car.
       Later that night, the police saw defendant driving Servantes’s stolen car, and
another man was with him. Defendant and his accomplice were taken into custody.
Defendant had Servantes’s car keys, and the car was recovered. Servantes identified
defendant and his companion as the men who beat and robbed him, and defendant as the
man with the gun.




                                            3.
Procedural History
       Defendant was charged with carjacking; second degree robbery (§ 211); assault
with a firearm (§ 245, subd. (a)(2)); and assault by means likely to produce great bodily
injury (§ 245, subd. (a)(4)). As to all counts, it was alleged defendant personally used a
firearm (§ 12022.53, subd. (b), § 12022.5, subd. (a)).
       On August 15, 2013, defendant pleaded no contest to carjacking. The court
dismissed the remaining charges and enhancements.
       On September 23, 2013, the court denied defendant’s request for probation or the
lower term and sentenced him to the midterm of five years in prison. The court ordered
him to pay a $1,400 restitution fine (§ 1202.4, subd. (b)); an additional fine of $1,400,
which it stayed (§ 1202.45), the criminal conviction assessment fee of $30 (Gov. Code,
§ 70373), and the court facilities assessment of $40 (§ 1465.8). Defendant had a total of
209 credits based on 182 days of actual credits and 27 days of conduct credits.
       On October 29, 2013, defendant filed a timely notice of appeal. He did not request
or obtain a certificate of probable cause.
                                       DISCUSSION
       As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that appellant was
advised he could file his own brief with this court. By letter on January 16, 2014, we
invited defendant to submit additional briefing. To date, he has not done so.
       After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
                                      DISPOSITION
       The judgment is affirmed.




                                             4.
