Fear Not Law Articles: P. v. Sua

P. v. Sua

Filed 8/5/08 P. v. Sua CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

DAVID AL SUA,

Defendant and Appellant.

F054693

(Super. Ct. No. F07907885)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. R. L. Putnam and W. Kent Hamlin, Judges.^{^[1]}

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

PROCEEDINGS

On October 10, 2007, a criminal complaint was filed charging appellant, David Al Sua, with second degree burglary (Pen. Code, 459/460, subd. (b), count one),^{^[2]}receiving stolen property ( 496, subd. (a), count two), and petty theft with a prior qualifying conviction ( 666, count three). The complaint alleged three prior prison term enhancements ( 667.5, subd. (b)). On October 17, 2007, Sua entered into a plea agreement in which he would enter a no contest plea to count three and admit one prior prison term enhancement for a prison term of three years. Allegations in other, unrelated actions were to be dismissed. Sua executed a felony advisement, waiver of rights, and plea form setting forth these terms.

On October 17, 2007, the trial court explained the consequences of the plea agreement, including the fact that there was a three-year lid on Suas sentence. Sua acknowledged executing the felony advisement form and had no questions about the form. The trial court advised appellant of his constitutional rights pursuant to Boykin/Tahl.^{^[3]} Sua waived his rights, pled no contest to count three, admitted one prior prison term enhancement, and stipulated to a factual basis to the plea.^{^[4]} The court dismissed the remaining allegations in the complaint.

On November 16, 2007, the court dismissed the unrelated cases. The court sentenced Sua to prison on count three for the midterm of two years plus one year for the prior prison term enhancement. The court imposed a restitution fine and granted applicable custody credits. Suas request for a certificate of probable cause was denied.

Suas appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Sua was advised he could file his own brief with this court. By letter dated April 8, 2008, we invited Sua to submit additional briefing. To date, he has not done so.

FACTS

On October 7, 2007, Sua was arrested in the Fashion Fair Mall for being drunk in public. Sua was verbally abusive. Two security guards were attempting to talk to Sua. As the police officers attempted to grab Suas arms, they noticed a black jewelry box that appeared to have fallen from Suas clothing. The box contained a watch and a bracelet.^{^[5]}

A security manager for Gottschalks was asked to review the stores security tape. The officers also found a pink porcelain monet cake in Suas front pants pocket. The security manager returned and informed the officers that Sua had been seen entering the store without any items but had left the store holding the black box in his hand.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.

^{^[1]} Judge Putnam presided over appellants plea hearing. Judge Hamlin sentenced appellant.

^{^[2]} All further statutory references are to the Penal Code unless otherwise indicated.

^{^[3]}Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

^{^[4]} Sua stipulated to a factual basis for his plea in the change of plea form.

^{^[5]} There was no preliminary hearing. The facts are derived from the probation report.

Description	On October 10, 2007, a criminal complaint was filed charging appellant, David Al Sua, with second degree burglary (Pen. Code, 459/460, subd. (b), count one),[2]receiving stolen property ( 496, subd. (a), count two), and petty theft with a prior qualifying conviction ( 666, count three). The complaint alleged three prior prison term enhancements ( 667.5, subd. (b)). On October 17, 2007, Sua entered into a plea agreement in which he would enter a no contest plea to count three and admit one prior prison term enhancement for a prison term of three years. Allegations in other, unrelated actions were to be dismissed. Sua executed a felony advisement, waiver of rights, and plea form setting forth these terms. The judgment is affirmed.
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