People v. Perez CA5

Filed 6/25/24 P. v. Perez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F086455 Plaintiff and Respondent, (Super. Ct. No. BF186009A) v.

LUIS MARTIN NUNEZ PEREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. Kristine Koo, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

* Before Detjen, Acting P. J., Franson, J. and Meehan, J.

Appellate counsel for defendant Luis Martin Nunez Perez has filed an opening brief summarizing the pertinent facts and raising no issues but asking this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes a declaration from appellate counsel stating defendant was advised of his right to file a brief of his own with this court. By letter dated March 21, 2024, we also invited defendant to submit additional briefing. Defendant has not filed a response. Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following our Supreme Court’s direction in Kelly, we provide a brief description of the facts and the procedural history of the case. (Kelly, at p. 110.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm. PROCEDURAL SUMMARY On June 25, 2021, a felony complaint was filed charging defendant with improperly contacting and communicating with a minor (Pen. Code,1 § 288.3, a felony; count 1), and arranging to meet with a minor for an improper purpose (§ 288.4, subd. (b), a felony; count 2). Following a preliminary hearing, an information was filed alleging the same two counts against defendant on December 9, 2021. On July 5, 2022, defendant filed a motion pursuant to section 995, requesting the allegations contained in count 1 be set aside. After the People did not object to this request, the motion was granted on July 19, 2022. Before trial, defendant submitted a motion to dismiss the remaining count due to the failure to preserve evidence in violation of his right to due process. Before any prospective jurors were brought into court, the trial court heard evidence and arguments on this motion. Ultimately, the court denied the motion stating: