P. v. Trevino
Filed 10/18/13
P. v. Trevino 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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,
v.
LORENZO GILBERT TREVINO, JR.,
Defendant and
Appellant.
F064891
(Super.
Ct. Nos. F11903466, F10904144)
THE COURT*
APPEAL from
a judgment of the Superior Court of Fresno
County. Don Penner, Judge.
Allan E.
Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of
the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
On May 12,
2011, appellant, Lorenzo Gilbert Trevino, Jr. pled guilty in Fresno Superior
Court case No. F10904144, to one count of second
degree burglary (Pen. Code, §§ 459 & 460, subd. (b))[1] and admitted a prior serious felony conviction
under the three strikes law (§§ 667, subds. (b)-(i) & 1170.12). Appellant appealed this conviction and on
July 31, 2013, we issued our opinion in case No. F063621, rejecting appellant’s
challenge to the number of his custody credits and affirming his conviction.[2]
On January
26, 2012, the trial court denied appellant’s motion made pursuant to
118.
On February
6, 2012, a first amended information was filed in Fresno Superior Court case No.
F11903466, alleging that on June 5, 2011, appellant committed second degree
robbery (§ 211, count 1) and petty theft with a qualifying prior petty
theft conviction (§ 666, count 2).
The information further alleged a prior serious felony conviction under
the three strikes law and two prior prison term enhancements (§ 667.5,
subd. (b)). On that same date, the
parties entered into a plea agreement in which appellant would admit petty
theft with a prior, the prior serious felony conviction, and a prior prison
term enhancement in exchange for dismissal of the remaining allegations.
Appellant signed and initialed a
felony advisement, waiver of rights, and plea form acknowledging the terms of
the plea agreement and the
consequences of his plea. Appellant
further waived his constitutional rights pursuant to Boykin v. Alabama (1969)
395 U.S. 238 and In re Tahl (1969) 1
Cal.3d 122 (Boykin/
The court advised appellant of his Boykin/
waiver of those rights. The court
advised appellant of the consequences of his plea. Appellant admitted count 2, the prior serious
felony conviction, and the prior prison term enhancement.
On March 7, 2012, the court denied
appellant’s request to have the prior serious felony allegation stricken. The court sentenced appellant to the midterm
of two years, doubled to four years pursuant to the three strikes law. The court imposed a consecutive term of one
year for the prior prison term enhancement.
The court ordered a restitution fine of $1,200.
On March 7, 2012, the court
resentenced appellant in case No. F10904144.
The court made this case subordinate to case No. F11903466, imposed the
sentence of one-third the midterm of two years, or eight months, and doubled
that term to 16 months pursuant to the three strikes law. The term in case No. F10904144, was ordered
to run consecutive to the term imposed in case No. F11903466.
On March
12, 2012, the court clarified its award of custody credits, granting 322 days
of credits for being in custody and 160 days of conduct credits, for total
custody credits of 482. The trial court
granted appellant’s request for a certificate of probable cause. Appellate counsel has filed a brief seeking independent review of the case by this
court pursuant to People v.
FACTS
On the
afternoon of June 5, 2011, appellant left a Walmart store in Fresno with shirts
that were rolled up and stuffed under a girdle beneath his shirt. Appellant also had a pair of khaki pants
hidden under his jeans. Appellant
appeared intoxicated. When confronted by
a loss prevention employee of Walmart about taking property from the store,
appellant profanely replied that he was returning nothing. Appellant removed a weapon from his front
pocket that was silver and appeared to have a pointed tip.
Appellant’s
appointed appellate counsel has filed an opening brief that summarizes the
pertinent facts, raises no issues, and requests this court to review the record
independently. (Wende, supra, 25 Cal.3d
436.) The opening brief also includes
the declaration of appellate counsel indicating that appellant was advised he
could file his own brief with this court.
By letter on October 25, 2012, we invited appellant to submit additional
briefing. To date, he has not done so.
After
independent review of the record, we have concluded there are no reasonably
arguable legal or factual issues.
DISPOSITION
The judgment is
affirmed.
* Before
Poochigian, Acting P.J., Detjen, J. and Franson, J.
[1] All
statutory references are to the Penal Code.
