Filed 4/1/16 P. v. Lopez 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069566
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F13910770)
                   v.

JOEY RIGOBERTO LOPEZ,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*


         APPEAL from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge.
         Rex Williams, 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 Levy, Acting P.J., Poochigian, J. and Franson, J.
       A jury convicted appellant Joey Rigoberto Lopez of assault with a firearm
(count 1/Pen. Code, § 245, subd. (a)(2)),1 and possession of a firearm by a felon
(count 2/§ 29800, subd. (a)(1)), and found true a personal use of a firearm enhancement
in count 1 (§ 12022.5, subd. (a)). Following independent review of the record pursuant to
People v. Wende (1979) 25 Cal.3d 436, we affirm.
                     FACTUAL AND PROCEDURAL HISTORY
       On November 8, 2013, at approximately 8:00 p.m., Alfonso Chavez walked to the
Fiesta Market in Huron, California and encountered Lopez standing outside. Chavez
confused Lopez with Lopez’s cousin or uncle and referred to him by the wrong name,
causing Lopez to become angry. Lopez challenged Chavez to fight in an alley. Chavez,
however, continued walking inside the store. When Chavez came out, Lopez was no
longer standing at the entrance. After Chavez walked two blocks towards his house,
Lopez rode up on a bicycle and told Chavez to “take out” what he had. Chavez replied
that the did not have anything. Lopez then pulled a sawed-off shotgun from his shorts,
pointed it at Chavez’s stomach, and stated that he was going to kill him. Chavez
unsuccessfully attempted to take the shotgun from Lopez, then pushed him and ran.
When Chavez was 10 to 15 feet away from Lopez, he heard the shotgun discharge and
felt something strike him on his right hip.2 Chavez turned around and saw Lopez ride off
on his bicycle.
       After Chavez called 911, Huron Police Officer Carlos Esqueda arrived on the
scene and summoned an ambulance. After Chavez was treated on the scene for his
injuries, Officer Esqueda took Chavez to the police department. Although Chavez was
not personally acquainted with Lopez, he was familiar with him because when Chavez
first arrived in Huron two years earlier, he saw Lopez sitting in an alley. At the police


1      All further statutory references are to the Penal Code.
2      Chavez was hit by eight birdshot pellets that could not be extracted.


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department, Chavez was shown some photographs and identified Lopez as the man who
shot him.
        Lopez was arrested later that night at his residence. During a postarrest interview,
Lopez stated that at the time the shooting occurred, he was with his mother, a person
named “Metcha,” and a woman named Jackie Aguilar. As the interview ended, Lopez
asked Officer Esqueda to call his mother and tell her goodbye.
        On December 6, 2013, the district attorney filed an information charging Lopez
with the two counts he was convicted of and the arming enhancement that was found
true.
        On April 18, 2014, the jury reached guilty verdicts on both counts and found the
special allegation true.
        On May 28, 2014, the court sentenced Lopez to an aggregate term of 14 years: the
upper term of four years on his assault conviction; a 10-year term on the arming
enhancement in that count; and a concurrent middle term of two years on his possession
of a firearm by a felon conviction. The court also terminated Lopez’s felony probation in
an unrelated case.
        Lopez’s 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, supra, 25 Cal.3d 436.) Lopez has not responded to this
court’s invitation to submit additional briefing.
        Following an 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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