People v. Victoriano CA1/1

Filed 4/13/15 P. v. Victoriano CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A143396 v. CARLOS AVALOS VICTORIANO, (Marin County Super. Ct. No. SC187975) Defendant and Appellant.

In this appeal, counsel for appellant Victoriano indicates he has reviewed the record in the matter and has decided to file a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. He has advised appellant of this conclusion and indicated to Victoriano that he may decide to submit to this court a written statement of legal issues appellant believes are available here. Thirty days have passed and we have received no supplemental statement from appellant. We therefore have conducted an independent review of the record in this case. We find the appeal appropriate under California Rule of Court, rule 8.304, subdivision (b). We affirm the judgment. STATEMENT OF THE CASE The District Attorney of Marin County filed a complaint on February 24, 2014, charging appellant with one count of second degree robbery, a violation of Penal Code1 section 211, and one count of assault with a deadly weapon, a violation of section 245,

1 Unless otherwise stated, all statutory references are to the California Penal Code.

subdivision (a)(1). The alleged deadly weapon was a knife. Each count had an allegation of great bodily injury pursuant to section 12022.7, subdivision (a), and each offense was alleged as a strike based on section 1170.12, subdivisions (a), (b), and (c). Each was alleged as a serious and violent felony pursuant to sections 667.5, subdivision (c)(9) and 1192.7, subdivision (c). On June 4, 2014, appellant eventually entered a guilty plea to count two, a violation of section 245, subdivision (a)(1) and all but one of the enhancements. The prosecution dismissed count one and the great bodily injury allegation. On October 17, 2014, appellant was sentenced to the aggravated term of four years in state prison. Appellant’s appeal contains no certificate of probable cause. STATEMENT OF FACTS2 On February 6, 2014, the police were advised of a stabbing located on Woodland Avenue in San Rafael. The victim was attempting to unlock his front door when appellant approached and demanded his cell phone. When the victim told appellant he had no such item, Victoriano proceeded to stab him two times. Appellant then knocked the victim to the ground and took his wallet, containing $60. When the victim yelled for assistance, appellant tried to stab him two more times. During this confrontation, the victim detected the odor of alcohol on the person of Victoriano. After the police arrived, they took the victim to the hospital for medical treatment. On February 22, 2014, the victim saw appellant walking on Woodland Avenue and he alerted the police. Victoriano was then arrested and he confessed to the incident on February 6, 2014. He affirmed he wanted to steal a cell phone. Appellant conceded that he was drinking that day and becomes aggressive when he is in this condition.