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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

PEDRO BANUELOS ARIAS,

Defendant and Appellant.

F079337

(Super. Ct. No. BF175929A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.

Theresa Osterman Stevenson, 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 from a final judgment and sentence entered after a plea of no contest, without issuance of a certificate of probable cause, and is authorized by Penal Code section 1237.5. (Cal. Rules of Court, rule 8.304(b)(4).)

STATEMENT OF THE CASE

On March 13, 2019, a felony complaint was filed in the Kern County Superior Court, charging Pedro Banuelos Arias with second degree burglary (§ 460, subd. (b); count 1); felony vandalism (§ 594, subd. (b)(1); counts 2 & 4); theft of property valued over $950 (§ 487, subd. (a); count 3); and misdemeanor resisting a peace officer (§ 148, subd. (a)(1); count 5).

The complaint alleged that Arias suffered two prior serious or violent felonies, pursuant to sections 667, subdivisions (c)-(j), and 1170.12, subdivisions (a)-(e), based upon section 245, subdivision (a)(1) convictions in 2002 and 2004. It also alleged two prison prior enhancements, pursuant to section 667.5, subdivision (b).

On April 5, 2019, on the prosecution’s motion, the court dismissed the second strike prior conviction alleged as not valid. Thereafter, pursuant to a plea agreement, Arias entered a plea of no contest to count 1, count 2, and count 5, and admitted the strike prior allegation as to the 2004 conviction. The court dismissed all other charges and allegations of the complaint, including the prison priors under section 667.5, subdivision (b). Arias waived referral for a probation report, and requested immediate sentencing.

The court sentenced Arias to a total term of 32 months, comprised of the low term of 16 months, doubled due to the strike for count 1 (second degree burglary). The court also imposed a low term of 16 months, doubled, for count 2 (felony vandalism), and a term of 180 days local custody for count 5 (misdemeanor resisting a peace officer), with both to be served concurrent to the term for count 1. Pursuant to the plea agreement, the court further ordered that Arias’s terms in case Nos. BV010251A and BM931008A be served concurrently with the sentence in this case.

The court imposed a restitution fine of $300, pursuant to section 1202.4; a crime prevention fee of $10, pursuant to section 1202.5; a court security fee of $40 per count, pursuant to section 1465.8; and a court operations assessment of $30 per count, pursuant to Government Code section 70373. Thereafter, the court stayed the theft and restitution fines absent evidence that Arias had the ability to pay, and struck the imposed fees.

Arias was awarded a total of 52 days of presentence credits, comprised of 26 actual days and 26 conduct days.

Arias, acting in propria persona, filed a timely notice of appeal on May 20, 2019. On September 20, 2019, this court granted Arias’s request to deem his notice of appeal as including the following language: “This appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b).).”

STATEMENT OF THE FACTS

Arias pled no contest to having “willfully” and “unlawfully enter[ed] a building with the intent to commit theft.” He also pled no contest to felony vandalism and “resisting or delaying a peace officer.” He admitted that he suffered a prior serious felony conviction in 2004 for assault with a deadly weapon.

The parties stipulated that there was a factual basis for the plea, based upon the police report. In summary, the police report stated that on March 10, 2019, at about 9:07 p.m., Bakersfield police officers and a canine unit responded to an audible burglary alarm at the Sequoia Paint Company, located in the 700 block of Baker Street in Bakersfield.

Officers observed a 2004 Ford truck, owned by the business, had a broken driver’s side window and missing battery. They also observed that a glass door of the business’s warehouse building had been shattered, the wall of the warehouse had been pried open, and it appeared that there had been an attempt to remove a pressure washer and generator from the warehouse.

After one of the officers heard movement inside the business, Bakersfield Police Officer Kristopher Jauch announced, “Bakersfield Police Department police canine! Make yourself known and come out now, or I will send my dog and she will find you and she will bite you!” Jauch waited approximately 20 seconds and again announced a warning for the suspect to come out. After another 20 seconds of receiving no response, the canine was sent into the warehouse. Officer Jauch heard a male voice yell out, and found the canine biting a person, who was later identified as Arias. Arias freed himself from the canine and ran. He was later found inside a dumpster in the warehouse’s yard and arrested.

The owner of the business estimated that it would cost about $500 to repair the vehicle’s window, $500 to repair the glass door, and $1,000 to repair other damage to the warehouse. He also estimated the value of the generator was $2,000 and the value of the pressure washer was $200.

APPELLATE COURT REVIEW

Arias’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 Arias was advised he could file his own brief with this court. By letter on October 4, 2019, we invited Arias 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.