People v. Mayorga CA5

Filed 6/30/22 P. v. Mayorga CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F083182 Plaintiff and Respondent, (Super. Ct. No. F21902680) v.

DAVID THOMAS MAYORGA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Heather Mardel Jones, Judge. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Detjen, J. and Peña, J.

Appointed counsel for defendant David Thomas Mayorga asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant responded, contending (1) defense counsel did not explain his plea agreement and (2) his on-bail enhancement was imposed improperly because the offense from which he was out on bail was reduced to a misdemeanor. After requesting supplemental briefing from the parties, we vacate the sentence, strike the methamphetamine weight allegation and the on-bail allegation, and remand for resentencing. In all other respects, we affirm. BACKGROUND On April 2, 2021, at about 12:32 a.m., a sheriff’s deputy observed defendant entering a convenience store. The deputy knew defendant was on probation, and the deputy detained defendant without incident. As the deputy approached defendant’s vehicle, his girlfriend started to cry and told the deputy she and defendant were not supposed to be together because of a protective order that prohibited defendant from being with her. The deputy asked the girlfriend to exit the vehicle and then he searched the vehicle. In the girlfriend’s purse, he found two large clear plastic bags with a total weight of 106 grams of methamphetamine. He also found a digital scale with white residue in her purse and another digital scale in the vehicle. After receiving his Miranda1 rights, defendant told the deputy he was aware of the protective order, but he and his girlfriend were in love and living together. The deputy searched him and found $808 in cash on his person. Defendant admitted the drugs in his girlfriend’s purse were his. He said he had just bought the drugs and he got nervous when he saw the patrol vehicle behind him, so he gave the drugs to his girlfriend. He