People v. Olvera CA6

Filed 10/29/13 P. v. Olvera CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H038923 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. SS111858A)

v.

ARIEL OLVERA,

Defendant and Appellant.

I. INTRODUCTION

The morning of March 27, 2011, Edgar Santana, a correctional officer, was offering inmates in a section of the Salinas Valley State Prison the opportunity to shower. Around 11:00 a.m., Santana approached the cell occupied by defendant Ariel Olvera and his cellmate. Defendant was serving a 13-year sentence following his May 2001 convictions by plea of carjacking (Pen. Code, § 215, subd. (a))1 and assault (§ 245, subd. (b)) involving personal use of a semiautomatic firearm (§ 12022.53, subd. (b)). Defendant was dressed and wearing shoes when Santana asked if he wanted a shower. Since defendant wanted a shower, Santana handcuffed him and escorted him to the shower. At the shower room, Santana said there would be an unclothed body search and a cell search. When Santana requested his clothing, defendant removed and handed over his right shoe. On looking inside the shoe twice, Santana noticed a fragment of a hard

1 Unspecified section references are to the Penal Code.

plastic coffee cup sharpened to a point on one end with a handle on the other end made of cardboard and string. It was about five inches long and one inch wide. In Santana’s experience, it was a dirk or dagger usable for stabbing. The point was tucked into the sole of the shoe. Defendant did not react when Santana removed the weapon and asked if it was his. Defendant was charged with being a prisoner in possession of a dirk or dagger (§ 4502, subd. (a)) with two prior strike convictions (§ 1170.12). One charged strike, the assault conviction, was stricken at the prosecutor’s request prior to trial. Defendant later agreed to a court trial on the conditions of a minimum restitution fine and a sentence of four years, the lower term doubled due to the remaining prior strike. At the court trial, Officer Santana testified as summarized above. Defendant testified that the officer told him while he showered that he would be “going to the hole,” meaning administrative segregation. According to defendant, the officer did not say he was conducting a search and did not pull a weapon out of defendant’s shoe and ask him about it. Defendant stated he did not know why he was being punished until he saw a written lock-up order, and he had never seen the weapon before. The trial court found defendant guilty as charged and sentenced him the same day to four years in prison consecutive to the term he was currently serving, and imposed a restitution fine of $240, as well as a court operations assessment of $30 and $40 as a court facilities fee. Through counsel, defendant filed a notice of appeal on October 9, 2012. By letter dated May 21, 2013, this court notified defendant that his appointed appellate counsel filed a brief inviting us to identify any arguable appellate issues. On June 12, 2013, the court extended defendant’s time to respond until July 22, 2013. We have received no written communication from defendant. Because the court imposed the “minimum” restitution fine in an incorrect amount, we will reduce the restitution fine to $200. As we find no arguable issue in reviewing the record, we will affirm the judgment as modified.