Opinion
D067958
10-16-2015
THE PEOPLE, Plaintiff and Respondent, v. JOSE HERNANDEZ, Defendant and Appellant.
Laura R. Sheppard, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF34300) APPEAL from a judgment of the Superior Court of Imperial County, Diane B. Altamirano, Judge. Affirmed. Laura R. Sheppard, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Respondent.
Jose Hernandez entered a no contest plea to second degree burglary (Pen. Code, § 459). He was promised probation, however he agreed that if he failed to appear at sentencing he would be subject to a prison sentence. Hernandez did not appear for sentencing, and he was later arrested.
All further statutory references are to the Penal Code unless otherwise specified.
Hernandez was sentenced to the lower term of 16 months in prison, subject to various fines and fees. One of the fines imposed in the abstract of judgment was a $10 fine pursuant to section 1202.5. The fine was not mentioned by the court at sentencing. Hernandez filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating that she has been unable to identify any reasonably arguable issues for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Hernandez the opportunity to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
On January 13, 2015, Hernandez entered a JC Penney's store, after hours, through an unlocked door. Hernandez entered with the intent to steal some clothing but was not able to take anything.
DISCUSSION
As we have noted, appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, requesting this court to review the record for error. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following issue:
Whether the $10 fine imposed in the abstract pursuant to section 1202.5 should be stricken because it was discretionary and the court did not make an express finding that Hernandez had the ability to pay.
The issue was never raised in the trial court and is thus waived on appeal. (People v. Trujillo (2015) 60 Cal.4th 850.) Thus it does not raise a reasonably arguable issue.
We have reviewed the entire record and have not discovered any reasonably arguable issues for reversal on appeal. Competent counsel has represented Hernandez on this appeal.
DISPOSITION
The judgment is affirmed.
/s/_________
HUFFMAN, Acting P.J.
WE CONCUR: /s/_________
AARON, J.
/s/_________
Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------