People v. Dyas CA2/2

Filed 9/9/14 P. v. Dyas CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B253217

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA060094) v.

GREGORY DYAS,

Defendant and Appellant.

THE COURT:*

A jury found appellant Gregory Dyas guilty of stalking (Pen. Code, § 646.9, subd. (a)), a felony. The jury also found true the allegations that appellant had previously been convicted of a prior “strike” (Pen. Code, § 1170.12, subds. (a)-(d)), and that he had served a prior prison term for that conviction plus separate prison terms for three other felony convictions (Pen. Code, § 667.5, subd. (b)). During the sentencing hearing, appellant was removed from the courtroom due to his obstructive behavior. The trial

* BOREN, P. J., ASHMANN-GERST, J., FERNS, J.†

† Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

court sentenced appellant to 10 years in state prison, which consisted of the upper term of three years for the stalking conviction, doubled due to the prior strike, plus four years for each of the prior prison terms. Appellant was given 337 days of presentence custody credit. The trial court also ordered appellant to pay restitution fines and assessments. As discussed below, we order the abstract of judgment amended to include a fine. We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an “Opening Brief” in which no arguable issues were raised. On June 11, 2014, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. On July 7, 2014, appellant submitted a response entitled “Motion to Discover Evidence.” Appellant stated that the items he sought were part of the record. Appellant’s appointed counsel declared that he sent appellant transcripts of the record. On appeal, an appellant may not bring a motion seeking to discover evidence; we therefore treat it as his response, which essentially proclaims his innocence. We have reviewed the entire record and conclude that it provides a factual basis to support appellant’s conviction. The prosecutor presented the following evidence: In 2011, appellant met Zenaida McNeeley (the victim) at a liquor store in Lancaster, California. Appellant followed the victim out of the store and asked for her number. She did not give it to him at that time, but did so a few weeks later when she saw appellant at another liquor store. He called her the same day. Appellant called once or twice after that and then stopped. A few months later, he called again and told the victim that he had been to jail for “a few tickets” and wanted to take her out. They went to dinner and a movie and had sex, but never had sex again. Appellant came by several times after that, but there was no further romantic relationship. Sometime later, the victim discovered that appellant had lied to her about his name, his age, and where he was from; he had actually gone to school with her father and they were about the same age. She told appellant not to come by her house anymore and to stop calling her. Appellant laughed in response and said, “It’s not over.”