People v. Garza CA3

Filed 2/17/16 P. v. Garza CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE,

Plaintiff and Respondent, C077969

v. (Super. Ct. Nos. CRF141028, CRF101890) RICARDO PENUNURI GARZA, SR.,

Defendant and Appellant.

Appointed counsel for defendant Ricardo Penunuri Garza, Sr., asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the record, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 110, 124.) An information filed in June 2014 charged defendant with manufacturing concentrated cannabis (count 1; Health & Saf. Code, § 11379.6, subd. (a)); possessing methamphetamine for sale (count 2; Health & Saf. Code, § 11378); possessing cocaine

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for sale (count 3; Health & Saf. Code, § 11351); possessing marijuana for sale (count 4; Health & Saf. Code, § 11359); possessing hydrocodone (count 5; Health & Saf. Code, § 11350, subd. (a)); and selling methamphetamine (count 6; Health & Saf. Code, § 11379, subd. (a)). As to all counts, the information alleged defendant committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)).1 As to counts 1, 2, 3, and 6, the information alleged defendant had a prior conviction for violating Health and Safety Code section 11378. As to counts 2 and 3, the information alleged that due to that prior conviction, probation was prohibited. Lastly, the information alleged defendant had sustained a prior serious felony conviction that was also a strike, namely a 2012 conviction for violating section 186.22, subdivision (a). In July 2014, defendant entered into a plea agreement whereby he pleaded no contest to count 1 and admitted the street gang enhancement and the prior strike, in return for the promise of an aggregate term of 10 years in state prison (3 years for count 1, doubled for the strike, plus 4 years for the gang enhancement), with all other counts and enhancements to be dismissed. Defendant understood the manufacturing conviction with the gang enhancement was a strike. As part of the plea agreement, defendant also admitted a violation of probation in a prior case, No. 10-1890, understanding any sentence imposed in that case would run concurrent to the sentence in defendant’s present case. The preliminary hearing transcript provided the stipulated factual basis for defendant’s plea in the present case. On June 12, 2013, in West Sacramento, defendant sold methamphetamine to an undercover informant. A search of defendant’s residence located two ounces of honey oil (concentrated cannabis), soda bottles containing