People v. Serrato CA6

Filed 5/1/15 P. v. Serrato CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040406 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS122448A)

v.

NICOLAS PEREZ SERRATO,

Defendant and Appellant.

Pursuant to a negotiated disposition, appellant Nicolas Perez Serrato pleaded no contest to one count of theft of over $950 by an employee. (Pen. Code, § 508.) As promised, the court placed appellant on formal probation for a period of three years and imposed various terms and conditions of probation. Three of those probation conditions are challenged on appeal. For reasons that follow, we must dismiss the appeal for lack of a certificate of probable cause. Background We take the facts of the underlying crime from the probation officer’s report. From December 4 to December 24, 2012, appellant was employed at Target and stole several items from the Target stock room. Appellant admitted the thefts and estimated the value of the items at over $20,000. However, Target was able to verify that only $7,081 of merchandise was stolen.

Appellant executed a written plea agreement in which he acknowledged that another case—case No. SS130178A—would be dismissed at sentencing with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), meaning that the sentencing judge could take that case into consideration when sentencing appellant on this case. Since case No. SS130178A was not consolidated with this case, the only facts underlying that case are contained in the probation officer’s report. According to that report, appellant and his codefendant brother-in-law Jesus Ayala were charged with receiving stolen property (Pen. Code, § 496, subd. (a)) following a search warrant service and bail compliance search at 30945 Tavernetti Road in Gonzales. The police ordered all occupants out of the home via loudspeaker. As the occupants began to depart the residence, it was noted that the garage light had been turned on and then off. The people that came out of the home were Maria Ayala, Jesus Ayala, Maria and Jesus’s four-year-old minor daughter, and appellant. A search of the residence yielded a black canvas bag found in the garage that contained four handguns, ammunition, magazines, gun cleaning supplies; 50-round and 20-round magazines for a .22-caliber rifle; and other items. The canvas bag was located in a metal tool chest that was in the garage. A search of the garage revealed eight additional firearms and containers with ammunition. As part of the plea bargain in this case, appellant executed a waiver of his appellate rights. Specifically, appellant agreed to “waive and give up all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal my conviction, the judgment, and any other orders previously issued by this court. I agree not to file any collateral attacks on my conviction or sentence at any time in the future.” (Italics added.) When the court went over the plea bargain conditions with appellant the court indicated that appellant was “waiving [his] rights to writs and appeals. And that means that you will not be filing any State or Federal writs of appeals. That includes, but is not limited to, the right to appeal your conviction, the judgment, and any