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People v. Abonce-Munoz

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Apr 19, 2018
H044954 (Cal. Ct. App. Apr. 19, 2018)

Opinion

H044954

04-19-2018

THE PEOPLE, Plaintiff and Respondent, v. LUIS ALBERTO ABONCEMUNOZ, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1634028)

Defendant Luis Alberto Abonce Munoz pleaded no contest to felony unlawful driving or taking of a vehicle without the owner's consent in exchange for the dismissal of other charges and a one-year jail sentence to be served on the electronic monitoring program with probation terminated on release. His plea agreement included a Cruz waiver. Defendant failed to appear for sentencing. The court suspended imposition of sentence and placed defendant on three years' formal probation subject to various conditions, including that he serve one year in county jail.

Defendant's last name also appears in the record as Munoz, Abonce, Munozabonce, Munoz Abonce, and Abonce Munoz.

"In People v. Cruz (1988) 44 Cal.3d 1247, [the California Supreme Court] interpreted the provision of [Penal Code] section 1192.5 that permits a defendant who pleads guilty or nolo contendere pursuant to a plea agreement to withdraw the plea if the agreement subsequently is disapproved by the court. [The court] held that this provision applies even if the defendant fails to appear for sentencing. [The court] noted in a footnote, however, that a defendant could expressly waive his or her rights under section 1192.5 at the time the plea was entered. (People v. Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)" (People v. Masloski (2001) 25 Cal.4th 1212, 1215, fn. 2.)

On appeal, defendant's counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We sent a letter to defendant at his last known address notifying him of his right to submit a written argument on his own behalf on appeal. That notice was returned as undeliverable; defendant has not provided this Court with an updated address.

In a declaration filed as part of the Wende brief, appellate counsel stated that he had "written appellant advising him that" a Wende brief would be filed and informing him of his rights to file a supplemental brief and to ask the court to have present counsel relieved and another attorney appointed.

Based on our independent review of the record, we conclude that there are no arguable issues on appeal. As required by People v. Kelly (2006) 40 Cal.4th 106, 110, we will provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." We will further include information about aspects of the trial court proceedings that might become relevant in future proceedings. (Ibid.) I. FACTUAL AND PROCEDURAL BACKGROUND

The facts are taken from the supplemental probation report.

Defendant stole or drove without authorization a work van belonging to the County of Santa Clara, Roads and Airport Department. The vehicle was recovered by law enforcement, but $4,366.94 in County property, including tools, a generator, and an iPhone, were missing. Also missing were personal items belonging to two County employees—Jasiel Malpica's $260 prescription glasses and Justin Gray's Bluetooth speaker ($99.99), Bluetooth transmitter ($22.99), and car keys ($525).

In a felony complaint filed on March 25, 2016, the Santa Clara County District Attorney charged defendant with felony unlawful driving or taking of a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a); count 1) and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364; count 2). The complaint alleged that defendant was out of custody on bail at the time he committed the felony (Pen. Code, § 12022.1) and that he had served two prior prison terms (§667.5, subd. (b)).

All further statutory references are to the Penal Code unless otherwise indicated.

On November 15, 2016, defendant pleaded no contest to count 1 in exchange for the dismissal of count 2 and the out on bail and prior prison term allegations. Defendant's plea agreement called for a one-year jail sentence to be served on the electronic monitoring program (EMP), "PTOR" (probation terminated on release). The plea agreement also included a Cruz waiver stating: "I understand if I willfully fail to appear for future court dates, I will lose the benefit of any plea agreement. The sentencing judge could then impose a different or greater punishment up to the maximum possible sentence, and I would not be allowed to withdraw my plea because of that different or greater punishment." Defendant initialed beside the Cruz waiver on the plea agreement form. In addition, prior to accepting defendant's plea, Judge Chatman explained to defendant that the Cruz waiver "means . . . you promise . . . to show up at the time of sentencing . . . ." Defendant acknowledged he understood the waiver.

Defendant failed to appear at his March 16, 2017 sentencing hearing. He appeared on June 1, 2017. At that time, the prosecutor explained that, given the Cruz waiver and defendant's failure to appear for sentencing, "the deal is now gonna be changed from his original PTOR, one year EMP to formal felony probation, one year in county jail." Also at that hearing, defense counsel agreed that "Arbuckle is waived."

Under People v. Arbuckle (1978) 22 Cal.3d 749, 756-757, an implied term of every plea bargain is that the judge who accepts the plea will be the judge who pronounces sentence. (K.R. v. Superior Court (2017) 3 Cal.5th 295, 312.) That right may be expressly waived. (Ibid.) --------

On June 23, 2017, defendant appeared for sentencing before Judge Duong. The court suspended imposition of sentence and placed defendant on three years' formal probation subject to various conditions, including that he serve one year in county jail with 241 days of credit. Defendant stipulated to $4,366.94 in restitution to the County of Santa Clara, Roads and Airport Department; $260 to Jasiel Malpica; and $647.98 to Justin Gray, and the court ordered restitution in those amounts. The court imposed a $300 restitution fine plus a 10 percent administration fee (§ 1202.4, subd. (b)) with an additional $300 probation revocation fine, which was suspended pending successful completion of probation (§ 1202.44); a $4 emergency medical air transportation fine (Gov. Code, § 76000.10); a $40 court security fee (§ 1465.8); a $30 criminal conviction assessment fee (Gov. Code, § 70373); a $259.50 criminal justice administration fee to payable to the County (Gov. Code, §§ 29550, 29550.1, 29550.2); and a $110 monthly probation supervision fee (§ 1203.1b). The court dismissed count 2 and ordered the out on bail and prior prison term allegations stricken.

Defendant timely appealed on August 2, 2017. On his notice of appeal, he wrote that the basis for his appeal was that a different judge sentenced him than accepted his plea. In an attached request for certificate of probable cause, he repeated that complaint and noted that the sentencing judge "imposed probation without [him] understanding why." The superior court denied the request for the certificate of probable cause.

II. DISCUSSION

Having examined the entire record, we conclude that there are no arguable issues on appeal.

III. DISPOSITION

The judgment is affirmed.

/s/_________

ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.


Summaries of

People v. Abonce-Munoz

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Apr 19, 2018
H044954 (Cal. Ct. App. Apr. 19, 2018)
Case details for

People v. Abonce-Munoz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LUIS ALBERTO ABONCEMUNOZ…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: Apr 19, 2018

Citations

H044954 (Cal. Ct. App. Apr. 19, 2018)