Filed 9/6/16 P. v. Rice CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E066053

v.                                                                       (Super.Ct.No. FVI022959)

JOHNNY LEON RICE,                                                        OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Victor R. Stull,

Judge. Affirmed.

         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.




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         Defendant and appellant Johnny Leon Rice was charged by amended information

with five counts of second degree robbery (Pen. Code,1 § 211, counts 1-5), receiving

stolen property (Pen. Code, § 496d, subd. (a), count 6), and the unlawful driving or taking

of a vehicle (Veh. Code, § 10851, subd. (a), count 7). The information also alleged that

defendant was armed with a handgun during the commission of all seven counts (former

Pen. Code, § 12022, subd. (a)(1)), that he had four prior strike convictions (Pen. Code,

§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)), and that he had suffered three prison

prior terms (Pen. Code, § 667.5, subd. (b)). A jury found defendant guilty of counts 1-6,

but not guilty of count 7. It also found the arming allegation true as to counts 1-6. At a

subsequent hearing, a trial court found true the prior offense allegations. The court later

denied defendant’s motion for new trial and Romero2 motion to strike a prior strike. It

then sentenced defendant to a total term of 154 years to life in state prison.

         Nearly 10 years later, defendant filed an in propria persona request for

appointment of counsel to prepare a motion for DNA testing, pursuant to section 1405.

The court denied the motion. Defendant filed a notice of appeal in propria persona, based

on the denial of the section 1405 request. We affirm.




         1   All further statutory references will be to the Penal Code, unless otherwise
noted.

         2   People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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                              FACTUAL BACKGROUND3

      Three men wearing ski masks entered a credit union armed with handguns. They

jumped over the counter and ordered the employees to the ground. They demanded the

tellers to unlock the drawers, and then they took money from the drawers. The suspects

fled the scene in a white Toyota Camry that had been reported stolen earlier that day.

The car was found abandoned at a bus station, a few blocks from the credit union. A

witness saw the suspects enter a white van and leave. The police found clothing in the

Camry, including a black face mask, white gloves, a shirt, and sweat pants. All items

were sent to the Sheriff’s identification division for processing. Specimens that were

submitted matched a felon identified as defendant. Defendant was subsequently arrested

for an outstanding warrant. DNA recovered from the mask used during the robbery

matched a second DNA specimen taken from defendant.

                                      DISCUSSION

      Defendant appealed and, upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case and one potential arguable issue: whether the court should have granted




      3   The factual background is taken from the probation officer’s report.

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defendant’s request for counsel under section 1405.4 Counsel has also requested this

court to undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, which

he has not done.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               HOLLENHORST
                                                                                          J.


We concur:


RAMIREZ
                        P. J.


CODRINGTON
                           J.




       4  Appellate counsel acknowledges that an order granting or denying a motion for
DNA testing under section 1405 is not appealable and is subject to review only through a
petition of writ of mandate, which is required to be filed within 20 days after the court’s
order. (§ 1405, subd. (k).)

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