P. v. Hernandez

Filed 1/19/10 P. v. Hernandez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Madera County. Jennifer R.S. Detjen, Judge.

Tim Warriner, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

PROCEEDINGS

On September 22, 2008, appellant, Carlos Hernandez, was charged in an information in case No. MCR032875 with threat to a public officer (Pen. Code,  71, count one),^[1]committing his offense while actively involved in a criminal street gang ( 186.22, subd. (a), count two), and a misdemeanor allegation of loitering or prowling ( 647, subd. (h), count three). An information was filed on December 3, 2008, in case No. MCR033494 alleging one count of felony second degree burglary ( 459) and an on-bail enhancement for reoffending while being released in the first action ( 12022.1).

On February 2, 2009, appellant entered into a plea agreement in which he would plead no contest to the burglary allegation in case No. MCR033494 and admit to the threat to a public officer allegation in case No. MCR032875 as a misdemeanor. There would be a Harvey waiver, with the right of the People to comment on the criminal street gang allegation in count two of case No. MCR032875.^[2] The remaining allegations would be dismissed. Appellant would receive a sentence with a lid of two years and register as a member of a gang pursuant to the Harvey waiver.^[3]

The trial court advised appellant of his constitutional rights pursuant to Boykin/Tahl on both the misdemeanor and felony allegations. Appellant stipulated that the facts received at the preliminary hearing served as a factual basis for his plea. Appellant waived his constitutional rights pursuant to Boykin/Tahl and plead no contest to misdemeanor threat of a public officer and felony second degree burglary.

On April 21, 2009, appellant was sentenced to prison for two years for the felony burglary conviction and sentenced to 117 days in jail for the misdemeanor conviction with 117 days credit for time already served. The court imposed a restitution fine as well as other penalties, assessments, and surcharges. Appellant filed a timely notice of appeal, but did not obtain a certificate of probable cause.

FACTS

Case No. MCR032875

On August 23, 2008, Madera Police Officer Esteves was dispatched at 6:30 a.m. to an address on North Lake Street to investigate a report that two Hispanic males were acting suspiciously by looking into backyards and hiding in bushes. Appellant and a minor were arrested for prowling. At the jail, appellant cursed at Esteves, calling him derogatory names. Appellant then said, Esteves watch you will get yours on the streets. (Quotations omitted.) Appellant had a gang tattoo and admitted he was an active member of a gang.

Case No. MCR033494

On October 18, 2008, appellant entered the Liquor Locker a few minutes before it closed at midnight. Appellant grabbed a case of Corona beer and quickly exited the store. Officer Jason Valdez was dispatched to investigate the case. Valdez watched a surveillance videotape of the theft. Valdez had a clerk who witnessed the theft look at a picture lineup that included appellants picture. The clerk identified appellant as the thief.

APPELLATE COURT REVIEW

Appellants 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. (People v. 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. By letter on October 14, 2009, 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.

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

^[1] Unless otherwise indicated, all statutory references are to the Penal Code.

^[2]People v. Harvey (1979) 25 Cal.3d 754.

^[3] Appellant executed a felony change of plea form in which he acknowledged the terms of his plea agreement, the consequences of his plea, and waived his rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).