P. v. Ortiz




Filed 1/5/11 P. v. Ortiz CA2/6



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. ARLIE LOPEZ ORTIZ, Defendant and Appellant.

2d Crim. No. B227210 (Super. Ct. No. 2010015062) (Ventura County)

Arlie Lopez Ortiz appeals a judgment of conviction of failing to register, with a finding that he suffered a prior serious felony strike conviction. (Pen. Code, §§ 290, subd. (b), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)[1] We appointed counsel to represent him in this appeal. After counsel's examination of the record, he filed an opening brief raising no issues. (People v. Wende (1979) 25 Cal.3d 436, 441.) On December 9, 2010, we advised Ortiz that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. We have received a response from him contending that at the time he entered his plea, the trial court promised him a grant of probation with a condition of confinement in the county jail for 180 days. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 123-124, we present a factual and procedural summary of the case, and a brief discussion of Ortiz's contention.
FACTS AND PROCEDURAL HISTORY
On April 29, 2010, the Ventura County prosecutor charged Ortiz with two counts of failing to register. (§§ 290, subd. (b), 290.012, subd. (a).) The prosecutor also alleged that Ortiz suffered a prior serious felony strike conviction in 1991 for burglary.
On May 10, 2010, prior to the preliminary examination, Ortiz waived his constitutional rights and entered a guilty plea to one count of failing to register. (§ 290, subd. (b).) He also admitted suffering the prior strike conviction. The trial court offered him a grant of probation with a condition of 180 days confinement in county jail, and continued sentencing to obtain a probation report.
On June 14, 2010, the trial court held a sentencing hearing. At the commencement of the hearing, the trial judge stated: "I have offered you probation and six months in jail. After reviewing the probation report, I think that's inappropriate. You would have a right to withdraw your plea or accept the sentence of 32 months. Which would you prefer to do‌" After discussion with his attorney, Ortiz stated that he would proceed to sentencing and accept the 32-month sentence.
The trial judge then referred to the probation report and stated that Ortiz had three prior strike convictions on "three separate times," had served six prior prison terms, and had never registered. The judge stated: "[Ortiz] just totally ignores the laws of this state."
The trial court then sentenced Ortiz to a 16-month low term, which it doubled, for a total sentence of 32 months. The court imposed a $500 restitution fine and a stayed $500 parole revocation restitution fine, and awarded Ortiz 74 days of presentence custody credits.
DISCUSSION
The trial court reviewed the probation report which discussed Ortiz's lengthy criminal history and failure to register. The court then decided to sentence Ortiz to state prison, and offered him an opportunity to withdraw his guilty plea and admission of a prior strike. Ortiz consulted with his attorney and declined to withdraw his plea. There is no sentencing error.
The judgment is affirmed.
NOT TO BE PUBLISHED.




GILBERT, P.J.


We concur:



YEGAN, J.



COFFEE, J.


Bruce A. Clark, Judge

Superior Court County of Ventura

______________________________


Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


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