Filed 1/6/20 P. v. Aguirre 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

MANUEL HERNANDEZ AGUIRRE,

Defendant and Appellant.

F079272

(Super. Ct. No. CF02676121)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.

Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF APPEALABILITY

This appeal is based upon the sentence, does not affect the validity of the plea, and is authorized by Penal Code section 1237. (Cal. Rules of Court, rule 8.304(b)(4).)

STATEMENT OF THE CASE

On December 3, 2002, Aguirre pleaded nolo contendre to driving without a license (Veh. Code, § 12500); resisting or delaying a peace officer (§ 148, subd. (a)(1)); and hit and run (Veh. Code, § 20002, subd. (a)). On December 6, 2002, Aguirre was convicted by jury of evading a peace officer (Veh. Code, § 2800.2, subd. (a)). At a bifurcated hearing, the trial court found Aguirre had suffered two prior convictions for robbery pursuant to sections 667, subdivision (b) and 1170.12, subdivisions (a) through (d). On January 8, 2003, Aguirre was sentenced to 25 years to life plus three years.

Aguirre subsequently filed a petition pursuant to section 1170.18. The trial court denied the petition on March 30, 2015.

On February 19, 2019, Aguirre filed a “Petition: Pursuant to Proposition 47 Newly Enacted: Double Up Laws, Case is Non-Serious/Non-Violent Felony is Eligible for Recall of Sentence and Resentenced as a ‘Two Strike’ Case.” On March 11, 2019, the trial court denied Aguirre’s petition, finding that the violation of Vehicle Code section 2800.2, subdivision (a) was not an eligible offense.

On May 13, 2019, Aguirre filed a notice of appeal.

STATEMENT OF THE FACTS

On January 9, 2002, Officer Maxwell followed Aguirre’s moving vehicle. Aguirre ran a red light and failed to yield to Maxwell’s emergency lights. Aguirre committed several other moving violations.

APPELLATE COURT REVIEW

Aguirre’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating Aguirre was advised he could file his own brief with this court. By letter on October 18, 2019, we invited Aguirre to submit additional briefing. To date, he has not done so.

After independently reviewing the entire record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.