People v. Pineda CA6

Filed 11/8/24 P. v. Pineda CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H052021, H052036 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. C2114310, C1756277)

v.

DUARTE PINEDA,

Defendant and Appellant.

I. INTRODUCTION These appeals involve two proceedings that this court has ordered to be considered together for the purposes of briefing and disposition. In superior court case No. C2114310 (hereafter case 1), defendant Duarte Pineda pleaded no contest to one count of attempted murder (Pen. Code, §§ 187, subd. (a), 664)1 and one count of assault with a deadly weapon (§ 245, subd. (a)(1)). Defendant also admitted an allegation that he used a deadly and dangerous weapon (a knife) in committing the attempted murder (§ 12022, subd. (b)(1)). In superior court case No. C1756277 (hereafter case 2), defendant pleaded no contest pursuant to a plea agreement to one felony count of cultivating marijuana causing harm to the environment (Health & Saf. Code, § 11358,

1 All further statutory references are to the Penal Code unless otherwise indicated.

subd. (d)) and one misdemeanor count of illegal deposit of refuse into the waters of the State of California (Fish & G. Code, § 5652). The two cases were combined for sentencing. The trial court sentenced defendant to the middle term of seven years for the attempted murder count and a consecutive term of one year for the use of a deadly and dangerous weapon enhancement, for a total sentence of eight years. The trial court imposed and stayed under section 654 a three- year term for the assault with a deadly weapon count, and for the offenses in case 2, it imposed sentences running concurrently to the sentence in case 1. Defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the cases and facts but raises no issues. This court notified defendant of his right to submit written argument on his own behalf within 30 days. That period has elapsed, and this court has received no response from defendant. 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 in both cases and determined that there are no arguable issues on appeal that would result in a disposition more favorable to defendant. Following the California Supreme Court’s direction in Kelly, we provide a brief description of the facts and procedural history of the cases, the crimes of which defendant was convicted, and the punishment imposed. (Kelly, supra, at p. 110.) II. BACKGROUND For case 1, the probation officer’s presentencing report stated the following factual background. In October 2021, defendant returned home, woke up his roommate, and challenged the roommate to fight him. The roommate replied that he wanted to continue sleeping, at which point defendant accused his roommate of being physically involved with a woman defendant considered to be his girlfriend. Defendant then left the room and returned with a knife. Defendant told the roommate “ ‘I’m going to kill you’ ” and then stabbed the roommate multiple times. Police responded to the home and found the