P. v. Aguilera

Filed 6/14/07 P. v. Aguilera 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Glade F. Roper, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

On March 16, 2005, appellant, Anselmo Ruiz Aguilera, pled no contest in case No. PCF140771 to felony allegations that he committed second degree burglary on August 1, 2004 (Pen. Code,  459, count one) and that he received stolen property on August 31, 2004 (Pen Code,  496, subd. (a), count three).^[1] Appellant pled guilty to possession of a controlled substance on September 12, 2004 (Health & Saf. Code,  11377, subd. (a), count five). Counts two and four were dismissed.

Prior to taking appellants change of plea, the court advised appellant of the consequences of his plea, including the maximum prison terms he faced on each count and that he would have to pay a restitution fine. The court advised appellant of his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl). Appellant waived these rights as well as his right to a preliminary hearing and a probation report prior to sentencing. Appellant admitted violating the terms of probation in an unrelated criminal case. The parties stipulated there was a factual basis for appellants plea.^[2]

On March 15, 2005, appellant entered a plea of no contest to a felony violation of Health and Safety Code section 11377, subdivision (a) in case No. TCF142267. Appellant admitted a misdemeanor violation of Vehicle Code section 10851 in an unrelated criminal action. Before accepting appellants plea, the court advised him of the consequences of his plea, including the maximum prison term he faced and the fact that he would have to pay a restitution fine. The court obtained a waiver of appellants right to a preliminary hearing. Appellant was advised of and waived his constitutional rights pursuant to Boykin/Tahl. The parties stipulated to a factual basis for appellants plea.^[3] The court suspended imposition of sentence and placed appellant on probation for 36 months.

On May 19, 2005, the court was advised appellant had been accepted into a drug court program in both cases. The court suspended imposition of sentence and ordered appellant released on probation. On November 21, 2005, appellant informed the court that he had been denied admission into a treatment program. The court reinstated appellant on probation. On December 19, 2005, the court had a hearing concerning his lack of attendance in Narcotics Anonymous classes and other treatment services. The court reinstated appellant on probation and ordered him back to court on December 21, 2005. Appellant failed to appear on that date and a warrant was issued for his arrest.

After appellant was arrested, he appeared in court on April 19, 2006. Appellant informed the court he just wanted to go to prison because he was not able to complete drug court classes. Appellant was informed of and waived his rights to a probation revocation hearing.

The court sentenced appellant to prison for the midterm of two years for possession of a controlled substance in case No. TCF142267. The court imposed concurrent midterm sentences of two years each in counts one, three, and five in case No. PCF140771. The court imposed a restitution fine and granted appellant applicable custody credits. Appellant failed to obtain a certificate of probable cause and filed a timely notice of appeal.

Appellants 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. (Peoplev. Wende (1979) 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. On February 7, 2007, we invited appellant to submit a letter stating any grounds on appeal he wished this court to consider. To date, the appellant has not responded.

The trial court carefully advised appellant of the consequences of his plea and his constitutional rights. The parties stipulated to a factual basis for appellants pleas in both actions. We find no error in the trial courts advisement of rights, the appellants waiver of rights and his admission of the allegation. There is no basis for appellant to attack the validity of his plea where, as here, he has failed to obtain a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) Finally, appellant waived his right to a probation revocation hearing and admitted violating the terms of his probation. The appellant requested he be sentenced to prison, disqualifying him for Proposition 36 probation and/or drug treatment under section 1210.1, subdivision (b)(4). The court imposed the midterm on one drug offense and sentenced appellant to serve concurrent sentences on the remaining allegations.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual arguments.

DISPOSITION

The judgment is affirmed.

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^*Before Levy, Acting P.J., Gomes, J., and Dawson, J.

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

^[2] On September 2, 2004, Porterville police responded to a report of suspicious persons on the northwest corner of a local trailer park. When officers arrived, they were informed that several trailers and R.V.s had been burglarized. When officers approached appellant, his speech was slurred and his balance was poor. Appellant granted officers permission to search him. An officer observed a large bulge in the cargo pocket of appellants pant leg, which turned out to be checks belonging to Phyllis Mellinger that had been stored in her trailer. Officers also found two credit cards belonging to Arle Mellinger. The Mellinger trailer showed signs of forced entry and officers obtained fingerprints from the scene. Appellant had a check from a pawn shop for a portable generator reported stolen by another tenant of the trailer park. Officers also found methamphetamine, a knife, and tools on appellant.

^[3] On March 1, 2005, two Porterville police officers learned of appellants location and executed warrants for appellants arrest, including one for a violation of Vehicle Code section 10851. In executing the warrant, the officers announced their presence several times. Someone inside the residence locked the door. The officers questioned an occupant leaving the residence who confirmed appellant was inside. The officers continued to announce their presence. Eventually, someone named Crane unlocked the door. The officers found appellant hiding in a closet under a pile of clothing. [F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. (Payton v. New York (1980) 445 U.S. 573, 603; also see People v. Hoxter (1999) 75 Cal.App.4th 406, 414 and People v. LeBlanc (1997) 60 Cal.App.4th 157, 163-164.) During a search of appellant incident to the arrest, the officers found appellant in possession of methamphetamine.