Opinion
F061074 Super. Ct. No. VCF235075A
11-02-2011
THE PEOPLE, Plaintiff and Respondent, v. AVELINO JUNIOR VASQUEZ, Defendant and Appellant.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Detjen, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, James W. Hollman, & Patrick J. O'Hara, Judges.
Judge Montejano presided over appellant's suppression hearing, Judge Hollman presided over appellant's change of plea hearing, and Judge O'Hara sentenced appellant.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
STATEMENT OF THE CASE
Appellant, Avelino Junior Vasquez, was charged in a first amended information with two felony counts of being a felon in possession of a firearm (Pen. Code, § 12022, subd. (a)(1), counts one & two) and felony participation in a criminal street gang (§ 186.22, subd. (a), count three). The information further alleged a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), a prior serious felony enhancement (§ 667, subd. (a)(1)), and two prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise designated, all statutory references are to the Penal Code.
On July 28, 2010, the trial court heard and denied appellant's motions to suppress pursuant to section 1538.5 and to dismiss the gun allegations as violating his Second Amendment rights.
On August 18, 2010, appellant entered into a plea agreement in which he would plead no contest to count one, admit the prior serious felony allegation, and admit a prior prison term enhancement in exchange for dismissal of the remaining allegations. Appellant would receive a prison term of five years. The trial court advised appellant of the consequences of his plea and his constitutional rights pursuant to Boykin/Tahl. Appellant waived his rights, pled no contest to count one, and admitted the special allegations in accordance with the plea agreement.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
The court sentenced appellant to a term of two years in prison, doubled to four years pursuant to the three strikes law. The court added a consecutive term of one year for the prior prison term enhancement for a total sentence of five years. Appellant received custody credits of 166 days and conduct credits of 82 days for total credits of 248 days. Appellant filed a timely notice of appeal, but his request for a certificate of probable cause was denied. Appellant's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We will affirm the judgment.
FACTS
At the preliminary hearing, Officer Jesus Guzman with the Tulare Police Department testified that on April 2, 2010, he was conducting probation and parole sweeps as well as a gang suppression patrol with other officers. Appellant was wanted by the parole department. When Guzman pulled up to a group of five men, one of them looked toward a backyard. Guzman saw other people scattering around, including appellant.
Appellant ran quickly to a fence and stopped before going over the fence, reaching into his waistband. As appellant did so, Guzman saw something hit the ground after appellant went over the fence. Guzman did not chase appellant. When Guzman went to the area from where appellant jumped, he found a loaded nine-millimeter Sig Sauer pistol. Three feet from where Guzman found the first handgun, he found a .22-caliber revolver. Officer Misael Aguayo, an expert on gangs, testified at length about the work of the gang task force and appellant's gang affiliation.
At the suppression hearing, Truman Jennings testified that he was appellant's parole officer on April 2, 2010, when appellant was arrested. On that date, appellant's parole was suspended because his whereabouts were unknown and there was a warrant for his arrest for absconding. As a condition of his parole, appellant was subject to being searched. Although Jennings had no way of reaching appellant because he lacked a permanent residence, Jennings did have information as to where appellant might be located.
The actual reference in the transcript is to April 2, 2009. This appears to be a misstatement. The felony complaint, the preliminary hearing transcript, amended information, and first amended information all reference April 2, 2010 as the date appellant committed his offenses.
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Officer Guzman testified that on April 2, 2010, at 6:00 p.m., he had spoken to Agent Jennings and had seen a picture of appellant. Guzman was aware appellant was wanted for violation of his parole and that he was subject to search "terms." When Guzman first saw appellant, Guzman had a clear view of him. When Guzman saw appellant, appellant quickly turned, faced the fence for a second, and briefly paused, before reaching for his waistband, turning and running.
APPELLATE COURT REVIEW
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 June 1, 2011, 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.