Opinion
H043794
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL NGUYEN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 213909)
I. INTRODUCTION
In July 2013 defendant pleaded guilty to false imprisonment by violence (Pen. Code, §§ 236, 237, subd. (a)) in Orange County Superior Court. The trial court suspended imposition of sentence and placed defendant on formal probation for three years. Defendant's case was later transferred to Santa Clara County. In June 2016 defendant admitted that he was in violation of probation and the trial court sentenced him to three years in county jail.
All further statutory references are to the Penal Code unless otherwise indicated. --------
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have reviewed the entire record. Following the California Supreme Court's direction in Kelly, supra, at page 110, we 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."
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Conviction
In February 2013 the victim, a seven-year-old boy, encountered defendant while they were sitting next to each other in the waiting area of a hair salon in Orange County. After defendant asked the victim if he was a boy or a girl, defendant placed his hand on the victim's penis over his clothing and rubbed it in a circular motion. Defendant also touched the victim's head, knee and shoulders.
The information filed in Orange County Superior Court in May 2013 charged defendant with lewd and lascivious act upon a child under the age of 14 years (§ 288, subd. (a); count 1) and misdemeanor annoying or molesting a child under 18 (§ 647.6, subd. (a)(1); count 2). An amended information was filed in Orange County Superior Court in July 2013 that charged defendant with one felony count of false imprisonment by violence (§§ 236, 237, subd. (a)).
Defendant pleaded guilty to false imprisonment by violence (§§ 236, 237, subd. (a)) in July 2013. The trial court suspended imposition of sentence and placed defendant on formal probation for three years with several terms and conditions.
B. Violation of Probation
In November 2013 the Orange County Superior Court revoked probation, based on the petition for warrant of arrest that had been filed. Defendant admitted the violation of probation in December 2013 and the trial court ordered probation reinstated and modified.
In February 2014 the Orange County Probation Department filed a motion to transfer the case to Santa Clara County on the ground that defendant was residing in Santa Clara County. The Orange County Superior Court granted the motion and on April 16, 2014, ordered the case transferred to Santa Clara County.
In November 2014 the Santa Clara County Probation Department filed a petition for modification of the terms of probation in Santa Clara County Superior Court. The petition stated that the circumstances of defendant's violation of probation included driving under the influence of a controlled substance; violating a protective order; driving with a blood alcohol level of 0.08 percent or higher; and violating the "no alcohol/drug" condition of his probation. As indicated in minute orders, the trial court modified the terms of probation on December 4, 2014; April 24, 2015; June 26, 2015; and July 17, 2015. On August 28, 2015, the trial court revoked probation.
In April 2016 the trial court issued a certificate and order under section 1368 in which the court declared a doubt as to defendant's competency. The trial court appointed a psychiatrist to examine defendant and determine whether he was competent to stand trial. After receiving the psychiatrist's report, the trial court found, on June 2, 2016, that defendant was competent.
A probation violation hearing was held on June 9, 2016. The hearing was continued due to an issue regarding the amount of custody credits. At the hearing held on June 16, 2016, defendant waived his right to be arraigned on the violation of probation, his right to a formal probation report, and his right to a formal hearing. Defendant then admitted that he was in violation of probation.
The trial court then sentenced defendant to three years in county jail. Defendant was granted a total of 952 days of custody credits. All fees and fines were ordered "deleted" except for a $240 restitution fine (former § 1202.4, subd. (b)) and a $240 parole revocation restitution fine (§ 1202.44).
III. WENDE ANALYSIS
Having carefully reviewed the entire record, we conclude that there are no arguable issues on appeal. (Wende, supra, 25 Cal.3d at pp. 441-443.)
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.