People v. Ortiz CA1/5

Filed 7/14/16 P. v. Ortiz CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, Plaintiff and Respondent, A146959

v. (San Francisco City and County CHRISTOPHER L. ORTIZ, Super. Ct. Nos. 217471, 219077) Defendant and Appellant.

This matter is before us for a third time. In his first appeal, appellant Christopher Ortiz challenged, inter alia, the trial court’s finding that a prior Texas burglary conviction was a strike under California’s “Three Strikes” law. (People v. Ortiz (Oct. 15, 2013, A136117) [nonpub. opn.] (Ortiz I).) We reversed this finding and remanded for retrial of the enhancement allegation. After retrial, the trial court again found the Texas conviction qualified as a strike and Ortiz appealed his sentence. We found the evidence insufficient to support the strike finding and declined to permit retrial on the issue; remand was required, however, to correct other sentencing errors. (People v. Ortiz (May 14, 2015, A139561) [nonpub. opn.] (Ortiz II).) Ortiz again appeals his sentence. Assigned counsel has submitted a Wende1 brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that Ortiz has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. No

1 People v. Wende (1979) 25 Cal.3d 436.

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supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.) We find no arguable issues and therefore affirm. I. BACKGROUND AND PROCEDURAL HISTORY2 A. Ortiz I In case No. 217471, Ortiz was convicted by jury of first degree residential burglary (Pen. Code, § 459).3 The jury found him not guilty of a misdemeanor and could not reach a verdict on charges related to a second residential burglary and receipt of stolen property. The jury also found true that Ortiz had suffered two prior felony convictions in Texas for which he had been imprisoned. The trial court determined that one of those convictions—a burglary—qualified as a sentence enhancing strike (§§ 667.5, 1170.12) and sentenced Ortiz to state prison. Ortiz appealed, claiming the evidence was insufficient to establish his Texas burglary conviction qualified as a strike in California because of differences in statutory definitions of burglary. B. Ortiz II While Ortiz I was pending, the People charged Ortiz with a third residential burglary (case No. 219077). This charge was later consolidated with the burglary and receiving stolen property charges from case No. 217471 for which there was no verdict. Among other allegations, the Texas burglary conviction was again alleged to qualify as a sentence enhancing strike. (§§ 667.5, subd. (b), 1170.12.) A jury found Ortiz guilty of both burglaries, and the receiving stolen property charge was dismissed by the prosecution. Ortiz waived jury trial on prior conviction allegations. He urged the trial court to conclude the Texas burglary conviction was not a strike because violation of section 459 is a strike only when the building is inhabited and Texas Penal Code section 30.02 criminalizes burglary of any building. Ortiz also argued there was no