P. v. Alvarez















Filed 7/18/12 P. v.
Alvarez CA3







NOT
TO BE PUBLISHED







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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Yolo)

----






>

THE PEOPLE, Plaintiff and Respondent, v. JUAN DE DIOS ALVAREZ, Defendant and Appellant.

C070226 (Super. Ct. No. CRF113666)

Appointed counsel for defendant
Juan de Dios Alvarez asked this court to review the record to determine whether
there are any arguable issues on
appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable
error that would result in a disposition more favorable to defendant, we will
affirm the judgment.

I

Because the matter
was resolved by plea, our statement of facts is taken from the probation
officer’s report. The victim, a
commercial truck driver, was approaching his maximum allowed hours for driving
and pulled his truck to the side of a Woodland
road. He parked next to a truck occupied
by defendant, who was also a commercial driver.


Early the next
morning, the sound of defendant’s engine woke the victim. Defendant realized there was insufficient
room to leave his parking space by driving forward, drove in reverse and
collided with the passenger side of the victim’s truck. After trying and failing to drive forward,
defendant called the victim a derogatory name and yelled at him to move his
truck. The victim tried to explain that
he could not move his truck until it had compressed sufficient air to release
his emergency brake.

Defendant again
collided with the victim’s truck and successfully left his parking space. When the victim got out of his truck to
inspect the damage, defendant struck the victim’s right eye with a closed fist. The victim fell to the ground and lost
consciousness.

When the victim
regained consciousness, defendant was kicking him repeatedly in the chest,
legs, and back. The victim’s pain was so
extreme he was unable to defend himself.
The assault continued until the victim crawled beneath his truck
trailer.

Defendant drove
away but made a U-turn and appeared to be aiming his truck at the victim, who
again sought shelter beneath the trailer.
When defendant again left the scene, the victim walked to a gas station
and called police.

Defendant pleaded
no contest to battery with serious
bodily injury. (Pen. Code, § 243,
subd. (d).)href="#_ftn1" name="_ftnref1"
title="">[1] He entered the plea with the understanding
that he would receive no prison time at the outset. In exchange for the plea, additional counts
were dismissed with a Harveyhref="#_ftn2" name="_ftnref2" title="">[2]> waiver for restitution.

After reviewing
the probation report, however, the trial court rejected the href="http://www.mcmillanlaw.com/">plea agreement, indicating that a prison
term seemed appropriate under the circumstances of the case. The People offered defendant the low base
term in prison. Defendant accepted the
offer and reaffirmed his plea.

The trial court
sentenced defendant to two years in prison, awarded him 196 days of presentence
custody credit (98 actual and 98
conduct), and ordered him to pay a $200 restitution fine (§ 1202.4), a
$200 restitution fine suspended unless parole is revoked (§ 1202.45), a
$40 court security fee (§ 1465.8, subd. (a)(1)), and a $30 court
facilities assessment (Gov. Code, § 70373).

II

Appointed counsel
filed an opening brief that set forth
the facts of the case and asked this court to review the record and determine
whether there are any arguable issues on appeal. (Wende,
supra, 25 Cal.3d 436.)
Defendant was advised by counsel of the right to file a href="http://www.fearnotlaw.com/">supplemental brief within 30 days of the
date of filing of the opening brief. More than 30 days elapsed and we received no
communication from defendant.

Having undertaken an examination of the
entire record, we find no arguable error that would result in a disposition
more favorable to defendant.

DISPOSITION

The judgment is
affirmed.







MAURO , J.







We concur:







NICHOLSON , Acting P. J.







BUTZ , J.