Opinion
A147891
03-16-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO ENRIQUE GONZALEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR 15-83499)
Francisco Enrique Gonzalez appeals from a judgment of conviction and sentence imposed after he entered a plea of no contest to a charge of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). His attorney has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.
I. FACTS AND PROCEDURAL HISTORY
In November 2015, an information charged appellant with two felonies: assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and making a criminal threat (§ 422). The information further alleged that appellant had a prior strike conviction within the meaning of sections 667 and 1170.12, the prior strike constituted a serious felony prior within the meaning of section 667, subdivision (a), and appellant had a prison prior within the meaning of section 667.5, subdivision (b).
All statutory references are to the Penal Code. --------
According to a synopsis of the preliminary hearing transcript set forth in the probation department's report, appellant punched his victim, swung a knife at him, and threatened to kill him.
On January 7, 2016, while represented by legal counsel, appellant signed a plea form by which he agreed to enter a plea of no contest to the assault with a deadly weapon charge in count one of the information. Under the plea agreement, the prosecutor would dismiss the other count and all prior conviction allegations, the court would impose and suspend a four-year state prison sentence, and appellant would be placed on probation for three to five years under conditions to be set by the court, including service of up to 365 days in county jail. Appellant acknowledged his waiver of his constitutional rights as set out in the plea form.
On that same day, appellant appeared in court to enter a plea of no contest to count one in accordance with the plea agreement. The court recited the plea agreement, ascertained that appellant had discussed its terms with his attorney, and confirmed that he understood the rights stated in the agreement and waived them. Appellant further acknowledged his understanding that, even if the court granted probation, he could be ordered to serve up to a year in jail as a condition of probation. The parties stipulated to the preliminary hearing as a factual basis for appellant's plea, and the court found that appellant's plea was knowing, intelligent and voluntary. The court then accepted appellant's plea of no contest to count one.
At the sentencing hearing on February 4, 2016, appellant's attorney asked the court not to impose jail time in excess of 180 days (which appellant was to serve concurrently on a post-release community supervision violation) and that appellant be ordered to enroll in an outpatient program. Defense counsel did not object to any proposed probation conditions. The court sentenced appellant to four years in state prison on count one, stayed execution of the sentence for the purpose of granting probation, and placed appellant on probation for three years with conditions including service of 224 days in county jail, with credit of 108 days for time served.
On March 22, 2016, appellant filed a notice of appeal from the order of February 4, 2016. The notice of appeal—the only one in this proceeding—indicated that appellant was appealing only his sentence and matters occurring after his plea; there is no indication in the record that he sought a certificate of probable cause.
Meanwhile, the prosecution filed two petitions in March 2016, alleging that appellant had violated his probation by failing to meet with the probation officer and by failing to appear in court. On April 5, 2016, appellant admitted violating his probation. The court executed the suspended sentence on April 28, 2016. An abstract of judgment was filed on June 17, 2016.
On December 13, 2016, pursuant to section 1237.2, appellant filed a motion asking the trial court to correct the abstract of judgment and a probation order filed on February 9, 2016, with respect to certain ministerial orders pertaining to fines. On December 21, 2016, the court granted the motion and filed an amended abstract of judgment that same day.
II. DISCUSSION
Appellate counsel represents in his opening brief in this appeal that he advised appellant of the filing of a brief on his behalf according to the procedures in People v. Wende (1979) 25 Cal.3d 436, and that appellant had a right to file a supplemental brief within 30 days of the filing of the opening brief. We have not received any supplemental brief from appellant.
We find no arguable issues on appeal. There are no legal issues that require further briefing.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.