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People v. Ortiz

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 13, 2020
F078951 (Cal. Ct. App. Jan. 13, 2020)

Opinion

F078951

01-13-2020

THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN ENRIQUE ORTIZ, Defendant and Appellant.

Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RF008111A)

OPINION

THE COURT APPEAL from a judgment of the Superior Court of Kern County. Jason Webster, Commissioner. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

Before Levy, Acting P.J., Meehan, J. and Snauffer, J.

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INTRODUCTION

Appellant Christian Enrique Ortiz was charged with multiple offenses and enhancements. Ortiz pled no contest to one count of felon in possession of ammunition, a violation of Penal Code section 30305, subdivision (a)(1), and admitted one prior strike enhancement in exchange for dismissal of the remaining counts and enhancements and an agreed-upon sentence. Ortiz was sentenced on February 19, 2019, and filed a timely notice of appeal. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.

References to code sections are to the Penal Code unless otherwise specified.

FACTUAL AND PROCEDURAL SUMMARY

On January 4, 2019, a complaint filed in Kern County charged Ortiz in count 1 with violating section 30305, subdivision (a)(1), felon in possession of ammunition; in count 2 with violating section 29800, subdivision (a)(1), felon in possession of a firearm; in count 3 with violating section 33210, possession of a short-barreled rifle or shotgun; and in count 4 with a misdemeanor violation of section 148, subdivision (a)(1), resisting a peace officer. In addition, counts 1 through 3 alleged two prior strike enhancements and three prison prior enhancements.

On January 22, 2019, Ortiz agreed to plead to the count 1 offense and admit one prior strike enhancement. In exchange for his plea, he would receive a sentence of 32 months for the count 1 offense, the low term of 16 months doubled for the enhancement, and the other counts and enhancements would be dismissed. Additionally, Ortiz was to agree to a Harvey waiver.

People v. Harvey (1979) 25 Cal.3d 754 (Harvey). --------

The trial court verified that Ortiz had reviewed and initialed the plea and waiver of rights form and that he had no questions about the contents of the form. The plea form explained immigration consequences, Ortiz's constitutional rights, and the consequences of his plea. The trial court also verified that Ortiz had sufficient time to discuss the plea agreement with his defense counsel; understood his constitutional rights and was waiving those rights; and that Ortiz understood the consequences of his plea and did not have any questions about the plea. The parties stipulated that the police report provided a factual basis for the plea.

Ortiz entered a no contest plea to the count 1 offense, admitted one prior strike enhancement, and agreed to a Harvey waiver. The trial court found that Ortiz knowingly and intelligently waived his constitutional rights and that his plea was freely and voluntarily made.

At the February 19, 2019 sentencing hearing, Ortiz was sentenced in accordance with the plea agreement to a total term of 32 months in prison. Total credits of 97 days were awarded. An assessment of $40 pursuant to section 1465.8 and a $30 assessment pursuant to Government Code section 70373 were imposed. A fine of $300 pursuant to section 1202.4 was imposed. A $300 fine pursuant to section 1202.45 was imposed and suspended. The abstract of judgment accurately reflects the oral pronouncement of sentence.

Ortiz filed a handwritten notice of appeal on March 5, 2019. He did not request a certificate of probable cause. By order dated June 18, 2019, this court construed the notice of appeal filed on March 5, 2019, to be an appeal from the judgment entered on February 19, 2019, and "taken after a plea of guilty or no contest and based on the sentence or other matters occurring after the plea that do not affect the validity of the plea."

Appellate counsel submitted a letter to the trial court on June 19, 2019, requesting that the fines and fees imposed in Ortiz's case be stayed pending a hearing on ability to pay pursuant to section 1237.2. The trial court granted the request and issued an amended abstract of judgment so reflecting.

On November 4, 2019, appellate counsel filed a Wende brief. That same day, this court issued its letter to Ortiz inviting him to submit a supplemental brief. No supplemental brief was filed.

DISCUSSION

Because Ortiz did not obtain a certificate of probable cause, section 1237.5 precludes a challenge to the validity of the plea. Because the 32-month sentence was agreed to by Ortiz as part of the negotiated plea agreement, a challenge to the sentence "is, in substance, attacking the validity of the plea" and cannot be challenged without a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 78.)

Any potential challenge pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, to the fines and assessments imposed on Ortiz has been resolved by the trial court's stay of imposition pending a hearing on ability to pay.

Based upon our independent review of the record, there are no issues meriting review. As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note Ortiz was informed of his right to file a supplemental brief and he has not filed such a brief.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Ortiz

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 13, 2020
F078951 (Cal. Ct. App. Jan. 13, 2020)
Case details for

People v. Ortiz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN ENRIQUE ORTIZ…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 13, 2020

Citations

F078951 (Cal. Ct. App. Jan. 13, 2020)