People v. Garcia CA6

Filed 12/10/13 P. v. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039505 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1237734)

v.

MARTIN RIOS GARCIA,

Defendant and Appellant.

A jury found Martin Garcia (defendant) guilty of two counts of carrying a concealed dirk or dagger. (Pen. Code, § 21310, counts one and two.) Following a bench trial, the court found true the allegations that defendant had suffered a prior strike conviction and had served two prior prison terms. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b).) Subsequently, the court sentenced defendant to state prison for 32 months on count one with a concurrent term of 32 months on count two. Defendant filed a timely notice of appeal. Defendant's appointed counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende was being requested.

On August 16, 2013, we notified defendant of his right to submit written argument on his own behalf within 30 days. That time has passed and we have not received a response from defendant. Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded there are no arguable issues on appeal. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) Facts and Proceedings Below The Santa Clara County District Attorney charged defendant by information filed on October 4, 2012, with two counts of carrying a concealed dirk or dagger. In the information, the District Attorney alleged that defendant had suffered a prior strike conviction and had served two prior prison terms. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b).) At trial, the evidence established that shortly after 6:00 p.m. on July 25, 2012, San Jose Police Officer Enrique Duran was on patrol in an unmarked police car with his partner Officer Ramirez. Officer Duran saw defendant engaged in an argument with a young woman. According to Officer Duran, when defendant and the young woman saw him they walked away into an apartment complex. Officer Duran stopped the patrol car; after he got out of the car he walked toward defendant and then searched him.1 In the right rear pocket of defendant's pants Officer Duran located two fixed blade knives that were in a sheath; he found a folding knife in the same pocket. Officer Duran testified that the fixed blade knives had sharp points and the edges of the knives could cut skin if wielded with sufficient force, however, they lacked the sharpness of a kitchen knife.