P. v. Avans

Filed 5/27/08 P. v. Avans CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles A. Chung, Judge. Affirmed.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Douglas Avans (Avans) appeals from the judgment entered following his plea of no contest to second degree robbery (Pen. Code, 211).^[1] The trial court sentenced Avans to three years in state prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.^[2]

At approximately 6:20 p.m. on September 23, 2005, an undercover loss prevention agent for the Vallarta Supermarket observed Avans, accompanied by an accomplice, take a number of Hersheys cereal bars from the shelf. After entering another aisle, Avans looked both ways, then lifted his sweater and concealed the bars in his waistband. At the same time, Avanss accomplice placed a box of cookies in his pocket. The two men then left the store.

The loss prevention agent, accompanied by a second agent, Reyes, contacted Avans and his cohort outside the store and asked them to return the stolen merchandise. Avanss companion cursed at the agents and swung with closed fists at Loss Prevention Agent Reyes. Both Avans and his companion then took off running. The agents were able to stop and detain Avans. However, his accomplice, after picking up all the merchandise, took off on foot and escaped.

2. Procedural history.

In a felony complaint filed September 27, 2005, Avans was charged with conspiracy to commit burglary ( 182, subd. (a)(1), 459), second degree robbery ( 211) and second degree burglary ( 459).

At proceedings held on November 8, 2005, the deputy district attorney indicated there was a proposed disposition in [the] case. In exchange for a plea of guilty or no contest to the robbery charge, Avans would be placed on probation for a period of three years on the condition he serve 180 days in county jail. The district attorney indicated Avans had requested that he be allowed to remain at large until November 29, 2005, at which time he would be sentenced and begin to serve his jail time. The remaining counts would be dismissed at the time he began to serve his term in jail.

Avans accepted the proposed disposition. After indicating that he understood he was pleading to a strike prior, Avans waived his right to a preliminary hearing, his right to a trial, his right to confront and cross-examine the witnesses against him, his right to present a defense and his privilege against self-incrimination. Avans entered a Cruz waiver,^[3]indicating he would report to the probation department that day and appear in court at 8:30 a.m. on November 29, 2005, for sentencing. Avans indicated he understood that, in the meantime, he was to stay away from the Vallarta Market and that, should he fail to appear on November 29, his plea would become an open plea and the trial court could sentence him to up to five years in state prison. Avans then pleaded no contest to second degree robbery in violation of section 211.

The trial court found the plea had been freely and voluntarily made with an understanding of the nature of the charges pending as well as the consequences of the plea. Based on its review of the police report, the trial court found there had been a factual basis for the plea. The trial court set the matter for sentencing at 8:30 a.m. on November 29, 2005.

Avans failed to appear for sentencing on November 29, 2005.

At proceedings held on September 17, 2007, the trial court noted Avans had been incarcerated on another felony matter since February of 2006. After indicating that it had read and considered a recent probation officers report and taken into consideration the fact that Avans had violated his Cruz waiver, the trial court sentenced Avans to the middle term of three years in state prison, the term to run concurrently to any other sentence Avans was serving. The trial court imposed a $600 restitution fine ( 1202.4, subd. (b)), a stayed $600 parole revocation restitution fine ( 1202.45), a $20 court security fee ( 1465.8, subd. (a)(1)) and a $10 theft prevention fee ( 1202.5). The trial court dismissed the remaining counts pursuant to section 1385 and awarded Avans presentence custody credit for 24 days, consisting of 21 days actually served and 3 days of good time/work time.

Avans filed a timely notice of appeal on October 22, 2007.

This court appointed counsel to represent Avans on appeal on February 1, 2008.

CONTENTIONS

After examination of the record, appointed appellate counsel filed in this court an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice dated March 21, 2008, the clerk of this court advised Avans to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.

APPELLATE REVIEW

We have examined the entire record and are satisfied Avanss counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The facts have been taken from the probation report.

^[3]People v. Cruz (1988) 44 Cal.3d 1247.