People v. Ortiz CA6

Filed 6/17/14 P. v. Ortiz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039863 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F22932)

v.

FRANCISCO HERNANDEZ ORTIZ,

Defendant and Appellant.

Defendant Francisco Hernandez Ortiz appeals after pleading no contest to possession of heroin (Health & Saf. Code, § 11350, subd. (a)) and admitting that he had a prior strike within the meaning of the Three Strikes law (Pen. Code, § 667, subds. (b)-(i)).1 He was sentenced to a two-year, eight-month prison term. On appeal, defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 that states the case and facts, but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant. Pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme

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

Court’s direction in People v. Kelly, supra, at page 110, we provide a brief description of the facts and the procedural history of the case.

FACTUAL AND PROCEDURAL BACKGROUND A. Current Offenses (Possession of Heroin & Possession of a Smoking Device) On June 17, 2012, Watsonville police officers went to defendant’s home to conduct a probation search. On defendant’s person, officers found a bindle of heroin, a piece of foil, and a rolled up $10 bill. The foil had black soot on it, and the rolled up $10 bill had a brown substance on one end and the odor of heroin. B. Strike Prior and Criminal History On June 22, 2010, Watsonville police officers responded to a report of a fight. They located defendant and another male together near a gas station. Defendant had a fixed blade knife in a sheath around his neck. Defendant subsequently pleaded no contest to active participation in a criminal street gang (§ 186.22, subd. (a)) and unlawful possession of a weapon (former § 12020, subd. (a)). Defendant’s criminal history began in 2004, when he was a juvenile. His prior adult convictions and juvenile dispositions include drug charges, attempted robbery, possession of stolen property, battery, and weapons charges. C. Charges and Plea Defendant was charged with possession of a controlled substance (count 1; Health & Saf. Code, § 11350, subd. (a)) and misdemeanor possession of a smoking device (count 2; Health & Saf. Code, § 11364.1, subd. (a)). The information alleged that defendant’s prior conviction for active participation in a criminal street gang qualified as a strike. (§ 667, subds. (b)-(i).) On December 4, 2012, defendant pleaded no contest to count 1 and admitted the strike allegation. The plea agreement provided that defendant would be sentenced to a