People v. Ortiz CA5

Filed 12/13/13 P. v. Ortiz CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, F065764

v. (Super. Ct. Nos. F11906319, F10902492, F11906340 & F11906778) JULIO ORTIZ, OPINION Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler Tharpe, Judge. Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Levy, Acting P.J., Cornell, J., and Peña, J.

In case Nos. F10902492, F11906319, F11906340, and F11906778 appellant, Julio Ortiz, pled guilty to various charges, admitted two enhancements and was sentenced to an aggregate eight-year prison term. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we discovered that the trial court erred in its award of presentence custody credit and by its failure to order restitution to the victim of Ortiz’s assault offense. We will correct these errors, modify the judgment accordingly, and affirm the judgment as modified. FACTUAL AND PROCEDURAL HISTORY On June 2, 2010, the district attorney filed a complaint in case No. F10902492 charging Ortiz with possession of heroin (count 1/Health & Saf. Code, § 11350, subd. (a)) and possession of a hypodermic needle (count 2/Bus. & Prof. Code, § 4140). On May 20, 2011, Ortiz pled guilty to possession of heroin and was placed on Proposition 36 probation for two years. On October 31, 2011, K.L. was on his front porch smoking a cigarette when Ortiz approached K.L., demanded cigarettes and money, and threatened to kill him if he did not comply. When K.L. stated he did not have any cigarettes or money, Ortiz attempted to enter K.L.’s house. Ortiz stabbed K.L. with a knife in the lower chest when K.L. attempted to stop him (case No. F11906319). Ortiz was arrested a short time later. On November 2, 2011, while in custody at the Fresno County Jail, Ortiz was being escorted by Correctional Officer Mejia, when he spit on Mejia’s neck and right shoulder (case No. F11906340). Also on November 2, 2011, the district attorney filed a complaint in case No. F11906319 charging Ortiz with assault with a deadly weapon (count 1/Pen. Code, § 245, subd. (a)(1)),1 attempted second degree robbery (count 2/§§ 664 & 211), and making