THE PEOPLE v. FABIAN GONZALEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Appellant, Fabian Gonzalez, appeals from a judgment entered after he pled no contest to assault with a firearm (count 1/Pen.Code, § 245, subd. (a)(2)) ¹ and making criminal threats (count 2/ § 422) and admitted a prior prison term enhancement (§ 667.5, subd. (b)).  Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On or about October 6, 2009, Gonzalez was in his bedroom arguing with his girlfriend, Maria Barrera, when he fired a handgun at the floor.

On October 13, 2009, at approximately 10:30 a.m., Barrera went to a welfare department office in Fresno with Gonzalez and his niece, Elsa. Barrera met her mother there and both of them went inside the building while Gonzalez and his niece stayed outside.   As Barrera was being attended at a window, Gonzalez called for her to leave and she walked outside to talk to him.   Gonzalez told Barrera they had to leave because he had taken his niece home and she was there alone.   Gonzalez got mad because Barrera would not leave and began to argue with her.   After her mother approached them and told Barrera that they were about to call her, Barrera went back inside and sat down.   Gonzalez followed Barrera into the office and told her that he was going to hit her if she did not go home with him.   He also told Barrera he had a gun, pointed a revolver in his jacket pocket at her, and pulled the hammer back.   When Barrera became frightened, Gonzalez ran away.

Later that day, Gonzalez called Barrera's ex-husband and threatened to kill him.

On October 21, 2009, police officers found Gonzalez in the garage of a friend's house with a loaded AK47 assault rifle near him.

On November 17, 2009, the district attorney filed an information charging Gonzalez with assault with a firearm (count 1), possession of a firearm by a felon (count 4/ § 12021, subd. (a)(1)), possession of a firearm with prior convictions (count 5/ § 12021, subd. (c)(1)), discharging a firearm in a grossly negligent manner (count 6/ § 246.3, subd. (a)), misdemeanor battery (count 7/ § 243, subd. (e)(1)), and two counts of making criminal threats (counts 2 & 3).   The information also alleged a personal use of a firearm enhancement (§ 12022.5, subd. (a)) in count 1 and two prior prison term enhancements (§ 667.5, subd. (b)).

On November 24, 2009, the court granted Gonzalez's motion to represent himself.

On January 6, 2010, Gonzalez entered his plea in this matter in exchange for the dismissal of the remaining counts and enhancements, a stipulated five-year term in the instant case, and a concur

rent term for a probation violation in an unrelated case.

On January 19, 2010, Gonzalez filed a motion to withdraw his plea.

On March 5, 2010, the court appointed the public defender for the limited purpose of representing Gonzalez at the hearing on his motion to withdraw his plea.

On May 7, 2010, the court denied Gonzalez's motion to withdraw his plea and sentenced him to an aggregate five-year term, the aggravated term of four years on his assault conviction, a concurrent three-year term on his criminal threats conviction, and a one-year prior prison term enhancement.   The court also terminated probation in the unrelated probation violation case.

Gonzalez'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.)   Gonzalez 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.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise indicated, all further statutory references are to the Penal Code..  FN1. Unless otherwise indicated, all further statutory references are to the Penal Code.