Gonzales
Filed 5/8/13 P. v. Gonzales CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
GEORGE
PRENDIZ GONZALES,
Defendant and
Appellant.
F063946
(Super.
Ct. Nos. F11600749, F10601961)
APPEAL
from a judgment of the Superior Court of
County. Hilary A. Chittick, Judge.
Johanna
R. Pirko, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office
of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
On November
1, 2011, in Fresno County Superior Court case No. F11600749 (case No.
F11600749), a jury convicted appellant, George Prendiz Gonzales, of two felony
counts of possession of heroin (Health
& Saf. Code, § 11350, subd. (a)) and two counts of
needle or syringe (Bus. & Prof. Code, § 4140), a misdemeanor. That same day, in a separate proceeding,
appellant admitted allegations that he had suffered a “strikeâ€
terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)).
Also on
November 1, 2011, in Fresno County Superior Court case No. F10601961 (case No.
F10601961), appellant, pursuant to a plea agreement, pled guilty
§§ 459, 460, subd. (b)) and, as in case No. F11600749, admitted one strike
allegation and two prior prison term enhancement allegations. One of the terms of the plea agreement was
that appellant would receive a sentence covering both cases of five years four
months.
On December
5, 2011, the court struck appellant’s strike pursuant to Penal Code section
1385 and imposed the agreed-upon prison term of five years four months,
consisting of the two-year midterm on the substantive offense in case No.
F10601961, eight months on each of the two felonies in case No. F11600749, and
one year on each of the two prior prison term enhancements. On each of the two misdemeanors, the court
credited appellant with time served.
In case No.
F10601961, appellant did not request, and the court did not issue, a
certificate of probable cause (Pen. Code, § 1237.5).
Appellant’s appointed appellate
counsel has filed an opening brief
which summarizes the pertinent facts, with citations to the record, raises no
issues, and asks that this court independently review the record. (People
v. Wende (1979) 25 Cal.3d 436.)
Appellant has not responded to this court’s invitation to submit
additional briefing. We affirm.
FACTS
Case No. F11600749
March 15, 2011
Offenses
At
approximately 6:30 p.m. on March 15, 2011, Officer Manuel Chavez of the Sanger
Police Department (SPD) was on foot in a park in Sanger, conducting a “[p]atrol
check†for “criminal activity,†when, from a distance of approximately six to
eight feet, he saw appellant, his back towards the officer, “straddling†a park
bench and holding a syringe which contained a “brown substance.â€
where appellant was sitting was a “rig,†i.e., “a combination of tools used to
prepare the drug,†consisting of an aluminum cap, a piece of cotton and another
syringe. There was a “Styrofoam†cup
between his legs.
Officer
Chavez approached appellant from behind, and when appellant became aware of the
officer’s presence, he (appellant) quickly dropped the syringe he was holding,
placed the aluminum cap and cotton in the cup, and “swipe[d]†the other syringe
off the bench. Chavez asked appellant to
stand, appellant complied and moved away from the bench, and the officer picked
up off the ground the syringe appellant had been holding. Chavez asked appellant what it was and
appellant responded, “‘You know man.
It’s heroin.’†The syringe that
appellant swiped to the ground contained a brown residue.
A Fresno
County Sheriff’s Department criminalist testified that he conducted a chemical
test of the liquid in one of the syringes, and that the test showed the syringe
contained .52 milliliters of heroin.
This amount constituted a “usable amount.â€
May 11, 2011
Offenses
At
approximately 11:00 p.m. on May 11, 2011, SPD Officer Jeffrey Bise was on
patrol in a patrol vehicle when he saw a person “crouched down in [an] alleyway.â€
officer turned around, pulled into the alley, got out of his patrol car and
shined his spotlight into the alley. At
that point, he saw a person, whom he recognized as appellant, walking toward
him. There was no one else in the
alley.
Bise asked
appellant if he had any needles in his possession. Appellant stated, “I might,†reached into a
back pocket, pulled out a piece of white tissue paper and “said, ‘Damn it[,] I
do,’ or something to that effect.†At
that point, appellant removed some needles from his back pocket, and Bise had
him place them on the hood of the patrol car.
Bise then arrested appellant, placed him in the back of the patrol car
and walked to the spot in the alley where the officer had seen appellant
crouching. There he saw, lying on the
ground, a syringe containing a “dark liquid substance.â€
A police
criminalist testified that a chemical test of the substance in the syringe
revealed that the substance was .27 milliliters of heroin. He opined that amount was a “usable
amount.â€
Officer
Bise obtained a urine sample from appellant.
A forensic toxicologist testified that a chemical test of appellant’s
urine sample revealed the presence of three chemicals of the opiate class of
drugs associated with heroin, including one that “only comes from heroin.â€
Case No. F10601961
The report of the probation officer
states, based on information set forth in a Sanger Police Department (SPD)
crime report, the following: At
approximately 12:30 p.m. on September 22, 2010, the victim, “Robert C. (age
58)†(Robert) left his garage door open while he was in his backyard, doing
yard work. At approximately 12:40 p.m.,
“Miguel O.†(Miguel) told Robert that he (Miguel) had seen a person go into
Robert’s garage and remove a “weed eater†tool.
Robert
“immediately began searching for the subject.â€
He “quickly found†appellant, who matched the description Miguel had
provided. Robert “noted that [appellant]
no longer possessed the weed eater.â€
Appellant told Robert that he (appellant) “had seen someone else take
the weed eater.â€
Robert went
home, and found that he was missing some other items, including a “reciprocal
saw†and a “Compound Bow.â€
Appellant
was taken into custody on September 23, 2010.
On October 4, 2010, Robert “positively identified [appellant] from a
photographic lineup.â€
DISCUSSION
Following independent review of the
record, we have concluded that no reasonably arguable legal or factual issues
exist.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Poochigian, Acting P.J., Detjen, J., and Peña, J.
name="_ftn2" title="">[1] We
use the term “strike†as a synonym for “prior felony conviction†within the
meaning of the “three strikes†law (Pen. Code, §§ 667, subds. (b)-(i);
1170.12), i.e., a prior felony conviction or juvenile adjudication that
subjects a defendant to the increased punishment specified in the three strikes
law.
