P. v. Perez
Filed 9/16/13 P. v. Perez CA2/3
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Jonathan Perez,
Defendant and Appellant.
B248548
(Los Angeles
County
Super. Ct.
No. BA406002)
APPEAL from
a judgment of the Superior Court
of
County, Drew E. Edwards, Judge. Affirmed.
Richard
Fitzer, under appointment by
the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant, Jonathan Perez, appeals from the judgment entered following his
plea of no contest to having a concealed
weapon on his person (Pen. Code, § 25400, subd. (a)(2)).
sentence and placed Perez on formal probation for three years on the condition,
among others, that he serve one year in county jail. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
At
approximately 2:20 p.m. on December 20, 2012, Los Angeles
Police Department Officer Christian Ventura and his partner, Officer Graber,
responded to a call directing them to 118 North Lake
Street in Los Angeles. When the officers arrived at the address,
they were “flagged†down by the woman who had made the 911 call. The woman was a tenant in the building and
she told the officers “there [were] four gang members . . . inside the storage
room of the apartment complex which was located on the second floor.†The woman described the men as “male
Hispanics wearing black-gray hoodies, . . . [and] black-gray pants . . . or
shorts.†She also indicated the men were
“known Temple Street gang
members,†none of whom lived at the complex.
gang members and it had frightened her.
Accordingly, she wished to remain anonymous.
Ventura
and his partner walked the between 50 and 100 feet to the storage room area of
the complex and proceeded to walk up the stairs. The officers saw Perez, who was wearing a
black hoody and gray shorts, sitting at the top of the stairwell next to the
storage room. The officers determined he
did not live at the building and, based on the information they had received in
the radio call and from the woman who had made the 911 report, the officers
ordered Perez to stand up, turn around and place his hands “up over his headâ€
so that Ventura could conduct a pat-down search. In view of the description given to them by
the 911 operator and the woman who had contacted them when they arrived at the
apartment building, Ventura and his
partner determined they “had enough facts to detain Mr. Perez for [a]
trespassing investigation.â€
As Perez
stood up and Ventura was about to approach him, the officer observed what
“appear[ed] to be a black handle of a handgun sticking out of his right front
shorts pocket.â€
title="">[4] Ventura
recovered the object, which turned out to be “a .22 caliber black
semi-automatic handgun.†The gun
appeared to be in working order and was loaded with one cartridge in the
chamber and six in the magazine.
2. Procedural
history.
At the
heard evidence and argument regarding Perez’s motions to dismiss and to
suppress evidence of the handgun found during the pat-down search conducted by
Officer Ventura. The court noted that
when Ventura and his partner
arrived at the apartment complex, they were flagged down by the individual who
had made the 911 call, that she had described the men in the storage room and
“that she knew [from previous experience] . . . they were Temple
Street gang members†who did not live at the
apartments. When the officers then went
to the storage room area, they saw Perez, who matched the description given to
them by the reporting party: “[h]e
appeared to be a male Hispanic†and his clothing was identical to that which
the woman who had called 911 had described.
Under these circumstances, the trial court concluded Ventura and his
partner had “probable cause†to believe Perez was one of the four men
trespassing and they could lawfully detain him.
In addition, although there was a discrepancy between Ventura’s
testimony and his report regarding whether he saw the handle of the handgun
before he performed the pat-down search, the court determined that, based on “the totality of the
circumstances,†the search was necessary to protect the officers’ personal
safety. The trial court concluded,
although it was a close call, Officer Ventura observed the handle of the
handgun “at or about the time he was going to commence the pat-down [search]
and[,] having observed the gun handle,†he was entitled to recover the
weapon. The trial court accordingly
denied the motion to dismiss the case for insufficiency of the evidence and
denied the motion to suppress evidence.
The court indicated it believed sufficient evidence had been presented
to hold Perez to answer to the charge of having a concealed weapon on his
person in violation of section 25400, subdivision (a)(2) and set bail in the
amount of $150,000.
On March
14, 2013, an information was filed charging Perez with one count of having a
concealed firearm on his person in violation of section 24500, subdivision
(a)(2), a felony. It was further alleged
“that the firearm and unexpended ammunition were in the immediate possession
of, and readily accessible to, [Perez] and that the firearm was not registered
to [him].â€
At
proceedings held on March 19, 2013, counsel for Perez requested an “indicated
sentence.†After acknowledging Perez
wished to enter a plea to the count alleged, the trial court indicated “[t]he
sentence would be three years probation, 365 days in the county jail, 120 hours
of Caltrans and the standard gang conditions.â€
Counsel for Perez then indicated Perez wished to accept the offer and
plead no contest to the charge.
The
prosecutor advised Perez of his right to a “public court or jury trial,†a
court trial, his right to confront and cross-examine the witnesses against him,
the right to produce evidence in his own behalf, the right to subpoena
witnesses to testify for him at no cost to him, his right against
self-incrimination and his right to remain silent. After indicating he understood these rights,
Perez, joined by his counsel, waived them.
The
prosecutor advised Perez that “it would have been the People’s recommendation that [he] receive 16 months
state prison†and that “[t]he maximum [he] could have done in this case [was]
three years.†The prosecutor continued,
“The court is going to give you a break based on your lack of a record.†After the prosecutor then gave to Perez
additional advisements, Perez pled no contest to having a concealed firearm on
his person in violation of section 25400, subdivision (a)(2), a felony
committed on December 20, 2012. Perez
then admitted the gun had not been registered to him.
The trial
court found Perez had “knowingly, expressly, and understandingly waived his
“that [his] plea [had been] freely and voluntarily made with a full
understanding of the nature of the charges and . . .
consequences,†and that there was “a factual basis for the plea.†Accordingly, the trial court found Perez
“guilty based on his plea.â€
The court
suspended imposition of sentence and placed Perez on probation for a period of
three years on the condition, among others, that he serve 365 days in county
jail and “perform 120 hours of Caltrans service.†The trial court then awarded Perez
presentence custody credit for 90 days actually served and 90 days of good
time/work time, for a total of 180 days.
The court ordered Perez to pay a $280 restitution fine (§ 1202.4,
subd. (b)), a suspended $280 probation revocation restitution fine (§ 1202.44),
a $40 court operations assessment (§ 1465.8, subd. (a)(1)) and a $30 criminal
conviction assessment (Gov. Code, § 70373).
The trial court then ordered Perez to return to court for a hearing on
September 16, 2013. He was to bring with
him proof he had performed the work with Caltrans.
Perez filed
a timely notice of appeal on April
11, 2013.
CONTENTIONS
After
examination of the record, counsel filed an opening
brief which raised no issues and requested this court to conduct an
independent review of the record.
By notice filed June 28, 2013, the
clerk of this court advised Perez to submit within 30 days any contentions,
grounds of appeal or arguments he wished this court to consider. No response has been received to date.
We have
examined the entire record and are satisfied counsel has complied fully with
counsel’s responsibilities. (
278-284; People v. Wende (1979) 25
Cal.3d 436, 443.)
DISPOSITION
The
judgment is affirmed.
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING,
J.
further statutory references are to the Penal Code unless otherwise indicated.
facts have been taken from the transcript of the preliminary hearing, during
which Perez’s motion to suppress evidence was heard (see § 1538.5).
