The People v. Ruiz CA5

Filed 8/28/13 P. v. Ruiz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent, F064879

v. (Super. Ct. No. F11906755)

ERIK VINCENT RUIZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler Tharpe, Judge.

J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Kane, J., and Franson, J.

INTRODUCTION Appellant, Erik Vincent Ruiz, was charged in a criminal complaint filed on November 29, 2011, with felony first degree burglary (Pen. Code, §§ 459 & 460, subd. (a), count 1)1 and one count of making a criminal threat, a felony (§ 422, count 2). The complaint further alleged a prior prison term enhancement (§ 667.5, subd. (b)). In early January 2012, appellant was evaluated by a psychologist pursuant to section 1368 and found competent to stand trial. On January 24, 2012, appellant entered into a plea agreement. Appellant initialed and executed a felony advisement, waiver of rights, and plea form. Under the terms of the plea agreement, appellant would admit count 1 in exchange for the dismissal of the other allegations and a stipulated sentence of four years. Appellant acknowledged the consequences of his plea and waived his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl). At the change of plea hearing, appellant’s counsel reviewed the terms of the plea agreement with the trial court. The court advised appellant of, and appellant waived, his constitutional rights pursuant to Boykin/Tahl. The court advised appellant of the consequences of his plea, including that the maximum punishment he faced was six years in prison. The parties stipulated to a factual basis for the plea. Appellant pled guilty to count 1. The remaining allegations were dismissed. On February 24, 2012, the court had conveyed to the parties that it was not accepting the stipulated sentence of four years. The court granted defense counsel’s motion for a continuance for appellant to review his options. On March 9, 2012, defense counsel represented that appellant was given the options of entering a guilty plea on