Opinion
C084477
11-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ERNEST ANTHONY PALACIO, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CRF15-0000536)
Appointed counsel for defendant Ernest Anthony Palacio has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
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.)
Defendant was charged by criminal complaint with assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The complaint alleged defendant sustained a prior strike conviction. (§§ 1170.12, subds. (b) & (c), 667, subds. (d) & (e).)
Undesignated statutory references are to the Penal Code.
Defendant entered a negotiated plea of no contest to the assault charge and admitted the prior strike in exchange for no immediate state prison pursuant to a Cruz waiver by which defendant would be released on his own recognizance to comply with all court-ordered mental health directives, obey all laws, stay away from the victim, and incur no failures to appear. Pursuant to the plea bargain, if defendant complied with all terms, the prior strike conviction would be stricken and defendant would be granted probation. If, on the other hand, defendant did not comply with all terms, he would be sentenced to serve four years in state prison (the low term of two years, doubled for the prior strike). The parties stipulated to the following factual basis for defendant's plea: On October 21, 2015, defendant assaulted his employer, D.R., by threatening him with a pair of scissors and trying to stab him. At the time of the assault, defendant was "off his medication." Defendant was previously convicted of robbery (§ 211), a violent felony, on November 21, 2008.
People v. Cruz (1988) 44 Cal.3d 1247 (Cruz). --------
Defendant did not appear at a review hearing scheduled for August 1, 2016, in violation of his Cruz waiver. A bench warrant was issued and defendant was arrested on January 24, 2017.
On February 21, 2017, defendant's counsel expressed doubt as to defendant's competence. The trial court suspended criminal proceedings and ordered defendant to be evaluated pursuant to section 1368.
At a hearing on March 10, 2017, after considering the section 1368 evaluation report authored by Dr. Daisy Switzer, the court found defendant competent to stand trial and reinstated criminal proceedings.
On April 3, 2017, the trial court found defendant violated his Cruz waiver and, consistent with his plea agreement, sentenced defendant to serve the low term of two years, doubled for the prior strike, for an aggregate term of four years in state prison. The court imposed fees and fines and awarded defendant 240 days of presentence custody credit (120 actual days plus 120 conduct credits).
Defendant filed a timely notice of appeal. He did not obtain a certificate of probable cause.
Counsel filed an opening brief that sets forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) 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.
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/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
MAURO, J.