P. v. Hernandez CA3

Filed 11/2/15 P. v Hernandez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C077902

Plaintiff and Respondent, (Super. Ct. No. CM041579)

v.

JOSEPH GRANT HERNANDEZ,

Defendant and Appellant.

Appointed counsel for defendant Joseph Grant Hernandez has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We will order mandatory fees imposed for both defendant’s convictions and affirm the judgment as modified.

FACTS AND PROCEEDINGS

On August 14, 2014, a Butte County Sheriff’s Deputy saw a vehicle fail to stop at a stop sign and stopped the vehicle. Defendant was a passenger in the vehicle; he told the

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deputy that he was on probation in another county. The deputy confirmed defendant’s probationary status before defendant told the deputy he had “ ‘some stuff’ in his pocket and a firearm in his backpack, which was on the front passenger floorboard.” The deputy searched defendant and, in defendant’s pocket, found two pills of “Dilaudid” and 0.1 gram of heroin. The deputy also found two pieces of tin foil with “residue” on them in defendant’s pocket, a Xanax pill inside the brim of defendant’s hat, and a .357 revolver in defendant’s backpack. Defendant was arrested; he later admitted he was a felon. The People later charged defendant with several felonies. Defendant pleaded no contest to possession of heroin (Health & Saf. Code, § 11350, subd. (a)), and possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)). In exchange for defendant’s plea, the People moved to dismiss the remaining charges and allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The trial court granted the People’s motion and sentenced defendant to an aggregate term of two years eight months in state prison. The trial court ordered defendant to pay various fines and fees, including a $40 court operations assessment (Pen. Code, § 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373). The court also awarded defendant 112 days of custody credit. Defendant appeals without a certificate of probable cause. After filing his notice of appeal, defendant petitioned the trial court to recall the sentence imposed on his conviction for possession of heroin pursuant to Penal Code section 1170.18. On February 4, 2015, the trial court recalled defendant’s sentence. Then, on February 11, 2015, the court struck the February 4, 2015, order and ruled the sentence imposed on October 8, 2014, “stands.”