Opinion
C085684
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS JOSEPH OFRIA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16CM05222, 17CF02451, 17CF02880)
Appointed counsel for defendant Nicholas Joseph Ofria has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On November 30, 2016, defendant was placed on misdemeanor probation in Butte County Superior Court case No. 16CM05222 for possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a).
On May 16, 2017, defendant stole a bicycle from the victim's open garage. He rode away on his own bicycle, pulling the stolen bicycle. The following day, Chico police discovered defendant changing the rear tire on a bicycle with another bicycle next to him. Defendant said he owned both bicycles but a check revealed that one of them was the one reported stolen by the victim the day before.
Defendant was charged in Butte County Superior Court case No. 17CF02451, with (1) first-degree residential burglary in violation of Penal Code section 459 and (2) receiving stolen property with a value not exceeding $950 in violation of section 496, subdivision (a). As to the burglary charge, it was further alleged that a person was present within the meaning of section 667.5, subdivision (c)(21).
Undesignated statutory references are to the Penal Code.
On June 12, 2017, a Chico police officer was dispatched to an in-progress vehicle burglary. The victim reported to the officer that a male and female had smashed a window to her vehicle, taken a backpack that contained the victim's purse, and fled in a grey BMW with paper plates. The officer observed the BMW approximately one mile from where the burglary had occurred. The officer made a U-turn in an attempt to catch up to the BMW. The driver then accelerated to 80 miles per hour in a 25-mile-per-hour zone and failed to stop at a stop sign. The officer lost sight of the vehicle but, 10 minutes later, the vehicle was found parked, and defendant and a female were seen walking in the area. Defendant fled into an apartment complex. It took police 35 minutes to locate and apprehend defendant. A resident of the apartment complex discovered the victim's driver's license and credit card on the ground in the complex. The stolen backpack and a black wallet with more of the victim's credit cards were discovered in the parked BMW, which had previously been reported stolen. A glass pipe and 0.54 grams of methamphetamine were also found in the BMW.
Defendant was charged in Butte County Superior Court case No. 17CF02880 with (1) the driving or taking of a vehicle without consent in violation of Vehicle Code section 10851, subdivision (a); (2) second degree burglary in violation of section 459; (3) misdemeanor resisting arrest in violation of section 148, subdivision (a)(1); and (4) reckless driving on a highway in violation of Vehicle Code section 23103, subdivision (a). As to counts 1 and 2, it was further alleged that he committed these offenses while released on bail in violation of section 12022.1.
Defendant pleaded no contest to burglary in case No. 17CF02451 and to unlawful driving or taking of a vehicle in case No. 17CF02880. The remaining allegations were dismissed with a Harvey waiver. The trial court denied his request for probation and sentenced defendant to the midterm of four years for the burglary conviction and a consecutive eight months (one-third the midterm) for the unlawful driving or taking of a vehicle conviction. Defendant's probation in case No. 16CM05222 was terminated as unsuccessful and defendant was ordered to a concurrent one-year term. The trial court imposed various fines and fees and awarded defendant 97 actual days and 96 conduct days, for a total of 193 days of presentence custody credit.
People v. Harvey (1979) 25 Cal.3d 754. --------
Defendant appeals. He did not obtain a certificate of probable cause. (§ 1237.5.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
DUARTE, J.