Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR463910, SCR467765, SCR504472
STEIN, J.
In this appeal from a judgment entered upon three separate complaints, counsel for defendant Gibb Joseph Olivarez, Jr., has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel represents defendant has been apprised of his right to file a supplemental brief. Defendant has not filed a brief. We have conducted the review requested by counsel, and finding no arguable issues, affirm the judgment.
Background
On May 19, 2005 a witness reported seeing defendant exit a storage facility maintained at a job site where a city park was being constructed. Defendant was carrying a sledgehammer, which he used to damage 10 memorial stone blocks that had been, or were about to be, incorporated into a fountain. Defendant apparently had been working at the site, but had been laid off a short time before. The police were called. They located defendant in a nearby parking lot, where they arrested him. The police conducted a search of defendant’s person incident to his arrest, finding .07 grams of methamphetamine in a plastic baggie.
On the morning of July 14, 2005, police were dispatched to a San Rosa business park after a burglar alarm at a business, Greenwood Home Furnishings, had been activated. The door to the business had been broken and left slightly ajar, but nothing inside the business appeared to have been stolen or damaged. A nearby fire hydrant, however, was broken and spraying water. The police had seen a red vehicle being driven in the park, and found it backed into a pair of warehouse doors at Cal RV, another business within the park. The interior of Cal RV had been vandalized. The vehicle belonged to a person who was living in the nearby offices of Siskiyou Forest Products, but denied having anything to do with the vandalism. The manager of another business, Valley Oaks Landscaping, reported that three of their trucks had been vandalized. The police found another red vehicle, a Jeep, which had been driven into a business park gate, and then abandoned. Later that morning, the owner of an automotive shop reported someone had stolen a vehicle—a Chevrolet Suburban—on which he had been working. The thief left behind a pickup truck that itself had been stolen. The Suburban was located a few hours later in a parking lot. Defendant was the sole occupant and later was identified as the person seen driving the vehicle. Police found several items from Cal RV in the Suburban. In explaining what he had been doing, defendant referred to the person who owned the red car that had been backed into the gate.
These cases were consolidated. On January 17, 2006, defendant pleaded no contest to charges of vandalism and possession of methamphetamine (Pen. Code, § 594, Health & Saf. Code, § 11377) in connection with the first case, and 14 charges filed in connection with the second case. These were: Unlawful taking of a 1985 Chevrolet truck (Veh. Code, § 10851); receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)); unlawful taking of a Chevrolet Suburban (Veh. Code, § 10851); receiving stolen property (Pen. Code, § 496); burglary (Pen. Code, § 459); unlawful taking of a Ford Escort (Veh. Code, § 10851); unlawful taking of a Jeep (Pen. Code, § 10851); and seven counts of vandalism (Pen. Code, § 594, subd. (a)). Defendant also admitted he previously had been convicted of a felony (Pen. Code, § 665) and had committed a felony while on bail or on his own recognizance (Pen. Code, § 12022.1). On March 3, 2006, the court imposed the upper term of four years for unlawfully taking the Chevrolet truck plus a two-year consecutive term for having committed a felony while on bail or own recognizance. It stayed sentence as to some of the other charges and imposed concurrent upper terms as to the others. The court suspended imposition of sentence and placed defendant on probation for a period of three years to afford defendant the opportunity to enroll in a program of supervised residential drug and alcohol treatment.
As appellate counsel points out, defendant first denied that he had suffered a prior conviction and committed a felony while on bail or on own recognizance release, but later admitted both allegations. In the context of the proceedings as a whole, it seems clear defendant was in fact admitting the allegations.
Defendant was arrested on January 16, 2007, after a man in Bodega Bay called police, reporting he observed someone breaking into his storage shed. The intruder threatened him. It further appeared someone had broken into a neighboring residence. The witness described a truck the intruder had been driving. The police saw the truck in the middle lane of Highway 1, facing the wrong direction, presumably because the driver—defendant—had lost control of it. The witness identified defendant as the intruder. Police retrieved stolen items from the truck. As a result of this incident, a complaint was filed against defendant alleging various offenses and defendant also was charged with violating the terms of his probation.
All three cases were resolved by means of a negotiated plea with a stipulated term of nine years. Defendant pleaded guilty to first degree residential burglary (Pen. Code, § 459) on the new case, and the other charges arising from the January 16, 2007 incident were dismissed with Harvey (People v. Harvey (1979) 25 Cal.3d 754) and Cunningham (Cunningham v. California (2007) 549 U.S. ___ [127 S.CT. 856] waivers. The court struck allegations defendant had committed a violent felony under Penal Code section 667.5, subdivision (c). By pleading guilty to the charges, defendant admitted the sufficiency of the evidence establishing the charged offenses, and therefore is not entitled to review of any issue that merely goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) In addition, Penal Code section 1237.5 and California Rules of Court, rule 8.304(b) bar a defendant from raising on appeal any question going to the legality of the proceedings, including the validity of the plea, without first obtaining a certificate of probable cause for the appeal from the trial court. Without such a certificate, a defendant may obtain review only of issues relating to the validity of a search and seizure or to proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant has not obtained a certificate of probable cause.
There are no issues relating to the legality of a search or seizure.
The court properly denied probation on the current case, and terminated probation on the earlier cases. (Pen. Code, § 1203.06, subd. (1)(E).) It imposed the aggravated term of six years on the residential burglary charge, plus a one-year enhancement for defendant’s prior conviction of taking a vehicle and a two-year enhancement for having committed that offense while on bail or on his own recognizance, for a total term of nine years in state prison. That term was authorized by defendant’s plea and by law. (Pen. Code, §§ 461, subd. (a), 666.5 (one-third the midterm, consecutive), 12022.1, subd. (b).) The court imposed concurrent terms on the other charges. The court imposed $220 restitution fines in each case plus parole revocation fines (suspended) in the same amounts, and properly ordered defendant to provide samples and specimens and to pay a $20 court security fee. (Pen. Code, §§ 1202.4, subd. (b)(1); 1202.45; 296, subd. (a); 1465.8, subd. (a)(1).) The court properly referred the case to the Victim’s Compensation Board to determine any additional restitution. Defendant was given 102 days’ credit.
Appellate counsel has sought and obtained a modification of the judgment. The judgment now requires defendant to pay restitution and parole revocation fines totaling $620 because the sentencing court in the first two cases had imposed fines of $200 for each case, as opposed to the $220 fines for each imposed by the court in March 2007. The judgment also stays the sentences on various counts, in accordance with the first proceedings, instead of imposing concurrent sentences for all counts. (See Pen. Code, § 654.) Counsel also obtained 309 additional credits for time served at a residential treatment program, pointing out defendant had not waived those credits.
Conclusion
We have thoroughly reviewed the record and, in light of the modifications obtained by appellate counsel, find no issues requiring further briefing.
The judgment is affirmed.
We concur: MARCHIANO, P. J., SWAGER, J.