People v. Rocco CA2/1

Filed 3/23/16 P. v. Rocco CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B265785
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA429706)
v.
ROBERT ROCCO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Henry J.
Hall, Judge. Affirmed as modified.
Robert Rocco, in pro. per.; and John L. Staley, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
On September 14, 2014, appellant Robert Rocco fled from police at high speed in
a stolen car, with a gun on the floorboard. Before trial he agreed in exchange for a
sentence of eight years and eight months to plead no contest to recklessly evading a
police officer (Veh. Code, § 2800.2, subd. (a)), unlawful taking of a vehicle (Veh. Code,
§ 10851, subd. (a)), and carrying a loaded firearm (Pen. Code, § 25850, subd. (a)).
Appellant was sentenced as agreed to the high term of three years for evading a
police officer, doubled because of a prior robbery conviction, plus consecutive sentences
of one-third the midterm (two years), doubled, for the unlawful taking and gun
possession charges, for a total of eight years and eight months. (Pen. Code, §§ 667, subd.
(e)(1), 1170, subds. (a) & (h), 1170.1, subd. (a).) He was awarded 262 days actual
custody credit and 262 days good time/work time credit. He was assessed a $90 criminal
convictions assessment (Gov. Code, § 70373) and a $120 court operations assessment
(Pen. Code, § 1465.8, subd. (a)(1)), and was ordered to provide a DNA sample (Pen.
Code, § 296). A $300 restitution fine was imposed (Pen. Code, § 1202.4, subd. (b)), and
a $300 mandatory supervision restitution fine (Pen. Code, § 1202.45) was assessed but
suspended.
Appellant filed a timely appeal but declined to seek a certificate of probable cause.
We appointed counsel to represent him on appeal, but after examining the record counsel
filed an opening brief raising no issues and asking this court to review the record
independently. On December 1, 2015, we advised appellant he had 30 days to submit
any contentions or issues he wished us to consider.
On December 24, 2015, appellant filed a letter brief in which he contended (1) the
jury was improperly told he had a prior felony conviction and (2) he should not have
received a three-year sentence enhancement pursuant to Penal Code section 667.5,
subdivision (a).
We have examined the entire record and are satisfied that appellant’s counsel has
fully complied with the responsibilities set forth in People v. Kelly (2006) 40 Cal.4th 106,
109-110 and People v. Wende (1979) 25 Cal.3d 436, 441.
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Appellant’s argument that the jury improperly received information cannot be
raised on appeal because his no contest plea and failure to obtain a certificate of probable
cause limit the potential scope of the appeal to “[g]rounds that arose after entry of the
plea and do not affect the plea’s validity” or “[t]he denial of a motion to suppress
evidence under Penal Code section 1538.5.” (Cal. Rules of Court, rule 8.304(b); see Pen.
Code, § 1237.5.)
Appellant’s argument that he was not subject to a three-year sentence
enhancement pursuant to subdivision (a) of Penal Code section 667.5 is correct, but he
received no such enhancement.
The record fails to demonstrate any colorable issue exists on appeal.
DISPOSITION
The judgment is modified to reflect appellant’s conviction for carrying a loaded
handgun was pursuant to subdivision (a) of Penal Code section 25850, not Vehicle Code
section 25850. In all other respects the judgment is affirmed. The clerk of the superior
court is directed to prepare an amended abstract of judgment to reflect the judgment as
modified and forward a copy of it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
LUI, J.
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