People v. Aviles CA1/1

Filed 9/20/16 P. v. Aviles CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A146681 & A148084 v. JOSE ANTONIO AVILES, (Alameda County Super. Ct. No. H57204) Defendant and Appellant.

In this appeal, counsel for appellant has filed a declaration stating he has reviewed the record in this matter and determined to file a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. He has written appellant and advised him of his conclusion. He told appellant he may file a supplemental brief with this court raising any issues Aviles believes should be addressed. More than 30 days have passed and no supplemental brief has been received. We have reviewed the record in this case and conclude the judgment should be affirmed. We note the appeal is timely. STATEMENT OF THE CASE These appeals arise from one action filed in the Superior Court of Alameda County. In an information filed on March 3, 2015, the district attorney alleged on or about May 20, 2014, appellant committed first degree burglary, a violation of Penal Code1 section 459 (count 1); and that on or about May 21, 2014, appellant committed the

1 Unless otherwise stated, all statutory references will be to the Penal Code.

offense of receiving stolen property, a violation of section 496, subdivision (a) (count 2), unlawful driving or taking of a vehicle, a violation of Vehicle Code section 10851, subdivision (a) (count 3), possession of a firearm by a felon, a violation of section 29800, subdivision (a)(1) (count 4); carrying a concealed firearm within a vehicle, a violation of section 25400, subdivision (a)(1) (count 5); receiving stolen property, a motor vehicle, a violation of section 496d, subdivision (a) (count 6); resisting, obstructing or delaying a peace officer, a violation of section 148, subdivision (a)(1) (count 7); and trespass by entering and occupying, a violation of section 602, subdivision (m) (count 8). The information also alleged five prior felony convictions, including one conviction alleged to be a prior serious or violent felony and strike within the meaning of sections 667, subdivisions (a)(1), (e)(1), 1170.12, subdivision (c)(1), and 667.5, subdivision (c); along with four prior prison convictions under section 667.5, subdivision (b). The charges in counts 1, 4, and 5 contained allegations of section 1170, subdivision (h), a mandatory state prison clause. On July 17, 2015, appellant entered a no contest plea to count 1and admitted the prior strike and prior serious felony allegations. He was represented by appointed counsel. Appellant was properly advised of his rights before the plea was taken. He agreed to a nine-year state prison sentence with the plea. The trial court dismissed the remaining counts and enhancements. On September 30, 2015, the trial court sentenced appellant to nine years in state prison. The sentence consisted of the low term of two years on count 1, doubled to four years by his prior strike conviction, and further enhanced to a total of nine years in prison for his prior serious felony. Aviles was awarded credits of 996 days for time served pursuant to section 4019. He was directed to pay $2,700 to the restitution fund fine (§ 1202.4, subd. (b)), a $2,700 parole violation fine, which was suspended (§ 1202.45), and other fines based on California statutes. Appellant filed his timely notice of appeal on October 27, 2015.