Opinion
H045369
07-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ABEL JUAN PEREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. SS161262A, 17CR003033)
I. INTRODUCTION
In case No. SS161262A, defendant Abel Juan Perez pleaded no contest to making a criminal threat (Pen. Code, § 422, subd. (a)), false imprisonment by violence (§ 236), dissuading a witness (§ 136.1, subd. (a)(1)), and distributing an intimate image (§ 647, subd. (j)(4)(A)). The trial court suspended imposition of sentence and placed defendant on probation for three years. We affirmed the judgment. (People v. Perez (May 16, 2018, H044887) [nonpub. opn.].) Probation was terminated after defendant pleaded no contest to stalking (§ 646.9, subd. (b)) in another case, case No. 17CR003033, and admitted an allegation that he had prior "strike" convictions for making a criminal threat and dissuading a witness (§ 1170.12, subd. (c)(1)). Defendant was sentenced to an aggregate term of five years in prison for his convictions in both cases pursuant to the terms of a plea agreement.
All further statutory references are to the Penal Code.
Defendant's request to take judicial notice of case No. H044887 was granted.
Although the complaint included only one strike allegation, the allegation was based on two prior strike convictions and defendant admitted that he had suffered both convictions.
On appeal, defendant's appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) 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. That period has elapsed and we have received no written argument from defendant.
Defendant's counsel forwarded this court's letter to defendant after a letter sent from the court to defendant was returned.
Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have carefully reviewed the entire record, keeping in mind that our review is limited to grounds for appeal that occurred after entry of defendant's no contest plea in case No. 17CR003033 and that do not affect the plea's validity. (Cal. Rules of Court, rule 8.304(b)(1), (b)(4)(B).) We agree with defendant's appellate counsel that there is no arguable issue on appeal. Therefore, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Following the California Supreme Court's direction in Kelly, supra, 40 Cal.4th at page 110, we provide a brief description of the facts and the procedural history of the cases.
On September 23, 2016, in case No. SS161262A, defendant was charged with kidnapping (§ 207, subd. (a); count 1), making a criminal threat (§ 422, subd. (a); count 2), false imprisonment by violence (§ 236; count 3), dissuading a witness (§ 136.1, subd. (a)(1); count 4), stalking (§ 646.9, subd. (a); count 5), resisting arrest (§ 148, subd. (a)(1); count 6), violating a protective order (§ 166, subd. (c)(1); count 7), distribution of an intimate image (§ 647, subd. (j)(4)(A); count 8), and battery on a cohabitant (§ 243, subd. (e)(1); count 9). On March 28, 2017, defendant pleaded no contest to making a criminal threat (count 2), false imprisonment by violence (count 3), dissuading a witness (count 4), and distributing an intimate image (count 8). On May 30, 2017, the trial court suspended imposition of sentence and placed defendant on probation for three years.
On September 14, 2017, in case No. 17CR003033, defendant was charged with stalking (§ 646.9, subd. (b); count 1) and violating a criminal protective order (§ 166, subd. (c)(1); count 2). The complaint also alleged that defendant had prior "strike" convictions for making a criminal threat and for dissuading a witness (§ 1170.12, subd. (c)(1)). On November 14, 2017, defendant pleaded no contest to stalking (count 1) and admitted the strike allegation. In his waiver of rights form, defendant specified the factual basis for the plea: "On or about 6/13/17, in Monterey County, [defendant] did willfully, maliciously [and] repeatedly follow [and] harass Jane Doe with the intent to place her in fear, while there was a stay away order prohibiting such conduct[.]" Based on his no contest plea, the trial court found defendant in violation of the terms of his probation in case No. SS161262A.
On December 5, 2017, pursuant to the terms of the parties' plea agreement, the trial court sentenced defendant to an aggregate term of five years in prison. In case No. SS161262A, probation was terminated and defendant was sentenced to serve three years in prison, consisting of a three-year term for making a criminal threat (count 2), concurrent three-year terms for false imprisonment by violence and dissuading a witness (counts 3 and 4), and a concurrent 180 days for distributing an intimate image (count 8). In case No. 17CR003033, defendant was sentenced to serve two years in prison consecutive to his sentence in case No. SS161262A. The sentence consisted of one-third of the midterm for stalking, doubled.
III. DISCUSSION
Defendant filed an amended notice of appeal in both cases on January 10, 2018, that states that he appeals from the sentences imposed and from the finding that he violated probation in case No. SS161262A.
Defendant initially filed a notice of appeal solely in case No. 17CR003033 that stated that the appeal was based on the sentence or other matters occurring after the plea that did not affect the validity of the plea. --------
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.