Opinion
A156785
05-12-2020
THE PEOPLE, Plaintiff and Respondent, v. JESUS ASCENCIOAVILA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR343099)
Defendant pled no contest to carrying a dirk or danger. The trial court placed him on three years' formal probation and, as a condition of probation, ordered him to serve 120 days in county jail. We affirm.
Because this case was resolved by plea, we briefly summarize the facts from the probation report.
At approximately 2:00 a.m., while Vacaville police officers were on patrol, they observed a vehicle without a license plate, driven by defendant, veering within a lane. After the officers contacted defendant, he advised them he did not have a driver's license and appeared to be trembling as he spoke. Once defendant was removed from the vehicle, the officers conducted a patsearch of his person, after he advised them that he had a knife on his waist. The search revealed a 5.5-inch fixed dagger concealed in a lanyard attached to the right side of his belt.
There were two passengers in the vehicle.
The Solano County District Attorney filed a complaint charging defendant with carrying a dirk or dagger (Pen. Code, § 21310; count 1), misdemeanor possession of a smoking device (Health & Saf. Code, § 11364, subd. (a); count 2), and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a); count 3).
Pursuant to a negotiated disposition, defendant entered a plea of no contest to carrying a dirk or dagger, counts 2 and 3 were dismissed, and three other cases were dismissed with Harvey waivers (People v. Harvey (1979) 25Cal.3d 754).
A Harvey waiver "permits a trial court to consider facts underlying the dismissed counts in determining the appropriate disposition for the offense of which defendant was convicted." (People v. Moser (1996) 50 Cal.App.4th 130, 132-133.)
The court suspended imposition of sentence and placed defendant on three years' formal probation with various terms and conditions, including 120 days in county jail with credit for time served of 89 days. The court also imposed several assessments and fines. As an additional condition of probation, defendant was required to "Provide any financial information requested by the probation officer. . . . [and] report to the Probation Department for a financial evaluation and recommendation of ability to pay costs, fines, and restitution as may be applicable in this case, and comply with payment terms established by the probation officer."
Defendant initially filed an opening brief on appeal raising a Dueñas issue regarding whether the trial court should have considered defendant's ability to pay before imposing fees and fines. (People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).) Defendant subsequently filed a request with our court to strike the opening brief and replace it with a Wende brief which was granted. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The request to strike the opening brief explains appellate counsel filed in the superior court a motion to vacate "court operations assessment, convictions assessment, and restitution fine" pursuant to Dueñas. The motion was granted by the superior court, making the argument in the opening brief moot. --------
Defendant's appointed counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d 436, setting forth a statement of the case, and requesting this court conduct an independent review of the record. Counsel has notified defendant he can file a supplemental brief with the court. No supplemental brief has been received. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have independently examined the record to see if any arguable issue is present. We have found none.
By entering a plea of no contest, defendant admitted the sufficiency of the evidence establishing the crimes, and therefore is not entitled to review of any issue that goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his plea; the only issues cognizable on appeal are issues relating to the validity of a denial of a motion to suppress or issues relating to matters arising after the plea was entered. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b)(4).) Defendant has not raised any such issues in his appeal.
Defendant was ably represented by counsel throughout the proceedings, including at sentencing.
Having undertaken an examination of the entire record, we find no arguable issue that would result in a disposition more favorable to defendant.
Accordingly, the judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P. J. /s/_________
Sanchez, J.