Opinion
H047170
02-25-2020
THE PEOPLE, Plaintiff and Respondent, v. ALFRED URIAH VALENCIA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. Nos. CR-18-01581, CR-18-00126)
Pursuant to a negotiated disposition, defendant Alfred Uriah Valencia pleaded no contest in San Benito County Superior Court No. CR-18-01581 (case No. '1581) to one count of permitting another to shoot from a vehicle (Pen. Code, § 26100, subd. (b)) and one count of possession of ammunition by a felon (§ 30305, subd. (a)(1)). Valencia further admitted violating his probation in San Benito County Superior Court No. CR-18-00126 (case No. '126), a case in which imposition of sentence had previously been suspended. Valencia was subsequently sentenced to an aggregate term of three years and eight months in state prison, as detailed below.
Unspecified statutory references are to the Penal Code.
We appointed counsel to represent Valencia in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Valencia of his right to submit written argument in his own behalf within 30 days. That period has elapsed, and we have received no written argument from Valencia.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation report, which derived its information from a report prepared by the Hollister Police Department.
On January 30, 2018, Hollister police officers responded to a fast-food restaurant to investigate an anonymous report of a "Honda sedan parked under a tree" with the occupants, some of whom appeared to be juveniles, in the possession of alcohol. While en route, the anonymous caller also reported that one of the people by the vehicle was holding a handgun.
When officers arrived, they observed five young males standing around a Honda parked under a tree. The first officer on the scene got out of his patrol car, drew his handgun, and ordered the five individuals near the Honda to put their hands on their heads. They eventually complied and the officer waited for assistance from other officers.
The five individuals, one of whom was Valencia, were pat searched and handcuffed. When Valencia was searched, the officer found a loaded .38-caliber revolver in Valencia's right front jean pocket. A records check of the weapon determined that it was registered to someone who lived in Salinas. The Salinas Police Department was unable to contact the registered owner.
On April 17, 2018, Valencia was charged by information with carrying a loaded, unregistered handgun, a felony (§ 25850, subd. (a); count 1) and resisting, obstructing, or delaying a peace officer, a misdemeanor (§ 148, subd. (a)(1); count 2). Pursuant to a negotiated disposition, Valencia pleaded no contest to count 1 in exchange for formal probation.
On July 26, 2018, the trial court suspended imposition of sentence and placed Valencia on three years' formal probation, on condition that he serve 120 days in county jail, with total credits of 68 days, consisting of 34 days custody credits plus 34 days of conduct credits. On the district attorney's motion, the trial court dismissed count 2.
Valencia was further ordered to pay the following fines and fees: a $400 fine; a $300 restitution fine (§ 1202.4, subd. (b)); a $300 probation revocation restitution fine, suspended pursuant to section 1202.45; $926 in penalty assessments; and a $80 state surcharge (§ 1465.7). The trial court also imposed the following fees, not as conditions of probation: a $150 presentence investigation fee (§ 1203.1b); a $40 court operations assessment (§ 1465.8); a $30 criminal conviction assessment (Gov. Code, § 70373); and a $30 monthly probation supervision fee (§ 1203.1b). The trial court expressly found, "based on the evidence in the pre-sentence report," that Valencia had the present ability to pay his fines and fees. Valencia did not object to this finding.
The trial court did not identify a statute authorizing this fine, either in its oral pronouncement or in the minute order. Section 672 authorizes the imposition of a "catch-all" fine for any crime punishable by imprisonment for which a fine is not prescribed by the applicable criminal statute. We presume the $400 fine was imposed pursuant to section 672.
The facts are again taken from the probation report, which derived its information from a report prepared by the Hollister Police Department.
At 12:53 a.m. on October 14, 2018, Hollister Police Officer P. Torres responded to a report of a shooting near a gas station. Torres spoke with the victim, who said he was walking home from the gas station a few minutes earlier when a green Chevrolet pick-up truck pulled up about 10 feet behind him. He did not recognize the driver or the passenger, but he could see the passenger was pointing a gun at him. The victim heard a total of six gunshots and also heard bullets hitting the ground as he turned and ran back to the gas station. Officers later recovered a .40-caliber bullet and three .40-caliber bullet casings in the area where the victim reported the shooting occurred.
A county sheriff's deputy located a truck matching the description provided by the victim and, after an officer drove him to where the vehicle was parked, the victim said it was the same vehicle. The truck was locked, but officers could see a .40-caliber bullet casing in the truck's bed, and a .40-caliber bullet near the passenger side door. The police impounded the vehicle.
On October 15, 2018, a Hollister police officer met with the vehicle's registered owner, later identified as Valencia's grandmother. She told the officer that she had allowed Valencia to borrow her truck on October 13, 2018. Valencia called her around 3:00 a.m. on October 14, 2018, and told her the truck had been towed.
Valencia came to the police department on October 25, 2018, for an interview. He said that he and a friend drove to a restaurant near the gas station on October 13, 2018, but the restaurant was closed. Valencia said he was the only person who drove the truck that evening. Because he was intoxicated, Valencia parked it near his cousin's home, accidentally leaving his wallet and cell phone locked inside, with the keys still in the ignition. Valencia denied knowing anything about a shooting, but would not identify the friend who was in the truck with him that evening. Valencia said he and his friend had come to an agreement that he would keep his friend's identity a secret and that, "whatever was in the vehicle, [Valencia] would take responsibility for [it]."
After obtaining a search warrant, Hollister police searched the truck and recovered a .40-caliber bullet in the passenger-side "door handle pocket," as well as two cell phones and a wallet containing Valencia's California ID and $538.
Valencia was charged by complaint in case No. '1581, filed on October 30, 2018, with felony assault with a firearm (§ 245, subd. (a)(2); count 1); felony permitting another to discharge a firearm from a vehicle (§ 26100, subd. (b); count 2); and felony possession of ammunition by a felon (§ 30305, subd. (a)(1); count 3).
After Valencia waived a preliminary examination, the complaint was deemed the information on December 27, 2018. --------
On November 1, 2018, the district attorney filed a petition to revoke Valencia's probation in case No. '126 based on his alleged failure to obey all laws, as evidenced by the complaint filed in case No. '1581.
On June 20, 2019, Valencia pleaded no contest to count 2 and count 3 in case No. '1581 and admitted that he violated his probation in case No. '126.
C. Sentencing in case No. '1581 and case No. '126
At the July 25, 2019 sentencing hearing, in case No. '1581, the trial court denied probation and sentenced Valencia to a total term of three years and eight months in state prison, consisting of the upper term of three years on count 2, plus a consecutive term of eight months (one-third the middle term of two years) on count 3. The trial court granted the district attorney's motion to dismiss count 1. In case No. '126, the trial court imposed the upper term of three years, to be served concurrently to Valencia's sentence in case No. '1581.
In case No. '1581, the trial court awarded total credits of 545 days, consisting of 273 days of custody credits plus 272 days of conduct credits. The abstract of judgment reflects total credits of 640 days in case No. '126, consisting of 320 days of custody credits plus 320 days of conduct credits.
With respect to fines and fees in case No. '1581, the trial court imposed a restitution fine of $300 (§ 1202.4, subd. (b)), a $300 parole revocation restitution fine (suspended) (§ 1202.45), an $80 court security fee (§ 1465.8), and a $60 criminal conviction assessment fee (Gov. Code, § 70373). Valencia raised no objection to the fines and fees imposed.
Valencia timely appealed.
II. DISPOSITION
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.
The judgment is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Mihara, J.