F iled 7/26/ 16 P. v. Vega CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANK XAVIER VEGA,

Defendant and Appellant. G052919

(Super. Ct. No. P02088)

O P I N I O N

Appeal from a n order of the Superior Court of Orange County,

David A. Hoffer, Judge. Affirmed.

Frank Xavier Vega, in pro. per.; and Steven J. Carroll, under appointment

by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 I NTRODUCTION

Defendant Frank Xavier Vega appeals from an order revoking and

reinstating his parole. Appointed counsel filed a brief pursuant to People v. Wende

(1979) 25 Cal.3d 436 ( Wende ), setting forth the facts of the case and requesting we

review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 ( Anders ),

appointed counsel identified a potential issue to assist us in our independe nt review.

Vega was granted 30 days to file written arguments in his own behalf . He filed a

supplemental brief.

We have examined the entire record

, counsel’s Wende / Anders brief , and

Vega’s supplemental brief . After considering the entire record, we hav e found no

reasonably arguable issue. ( Wende

, supra , 25 Cal.3d 436.) We therefore affirm.

B ACKGROUND

In October 2015, the California Department of Corrections and

Rehabilita tion filed a petition seeking the revocation of Vega’s parole. The petition

st ated that on August 13, 2015, Vega had been convicted of failing to register as a sex

offender under Penal Code section 290.018, subdivision (b)

, and was sentenced to a

prison term of one year four months. On September 22, Vega was released on parole

with terms and conditions requiring, inter alia, that he participate in continuous electronic

monitoring th r ough g lobal p ositioning s ystem (GPS) technology. T he petition stated

Vega had violated the terms and conditions of his parol e by disabling the GPS device that

he was required to wea r

.

At the hearing on the petition for revocation of Vega’ s parole, Donnell

Thrower testified that he was Vega’s parole agent. 1 He stated that Vega was required to

charge his GPS device a t least t wo times per day (every 12 hours) for at least one full

1 S upervision of Vega was scheduled to expire on September 21, 2018 (the controlling discharge date)

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hour for each charging time. Vega was also required to contact Thrower i mmediately if

his GPS device “ pin g [ ed ] ” or issued an alert. When Thrower met with Vega after h e had

been released on parole , T hrower p laced the GPS device on Vega’s leg and confirmed it

worked. H e also gave Vega a charger. On September 24, 2015, Vega signed a document

stating that he would abide by the parole terms of charging his GPS device.

From September 24 to September 28, Vega only twice correctly charged his

GPS device; Vega testified he had charged it for an hour on September 25 and for an

hour on September 26. Thrower testified Vega’s GPS device ping ed or ma de chirping

noises and vibrate d when its battery wa s low

. Thrower could see on his computer that

Vega’s GPS device had a low battery status, but Vega failed to c ontact Thrower at that

point. When the GPS device’s battery died, Thrower looked up Vega’s last GPS location

and went to that location where he found an d arrested Vega. Vega admitted to Thrower

that he had not charged the GPS device.

The trial court found Vega in violation of his parole terms and conditions as

set forth in the petition for revocation of parole. T he court revoked Vega’s parole,

ordere d him to serve 180 days in custody, awarded him credit for time served, and

reinstated his parole. Vega appealed.

A NALYSIS

We have reviewed the record and briefs in accordance with our obligations

under Wende and Anders , and we find no arguable issues on appeal. Vega filed a

supplemental brief, but therein stated he had “no reason” for challenging his “parole

violation” as he has already served the time imposed for that violation.

Instead of challenging the trial court’s order regarding the revocation of his

parole, i n his supplemental brief

, 2 Vega state s that he wishes to challenge a prior “sex

2 After Vega filed his supplemental brief, this court received correspondence from Vega requesting new appellate counsel. This court treated Vega’s correspondence as a4

case” that was tried in 2006. He further states that he asked his then

- assigned public

defender to appeal that conviction, but he was later informed by a subsequently assigned

attorney that no appeal had been filed.

The parole violation report

, filed in the instant case

, shows that in 2006,

Vega was convicted of several misdemeanors, including annoying a child under 18 years

of age in violation of Penal Code section 647.6, subdivision (a), and indecent exposure in

violation of Penal Code section 314 , subdivision 1. Vega’s challenge to any or all of his

2006 misdemeanor convictions is not before this court in this appeal. Furthermore, n ot

only is a ny challenge to those convictions at this point in time untimely, but appeals from

m isdemeanor convictions are made to the appellate division of the s uperior c ourt, not to

this court. (See Pen. Code, § 1466; People v. Nickerson (2005) 128 Cal.App.4th 33, 36

[“ The appellate divisions of the superior courts, by contrast, have appellate jurisdiction

over appealable orders from ‘misdemeanor case[s].’”].) 3

Even if this court had jurisdiction, we could not construe Vega’s

supplemental brief as a petition for a writ of habeas corpus pursuant to In re Benoit

People v. Marsden (1970) 2 Cal.3d 118 motion, directed the clerk of the court to file it

, and, for reasons set forth in the court’s order, sealed the document. Th is court denied Vega’s motion and further directed the clerk of the court to unseal the motion , transmit a copy of it to Vega’s appellate counsel of record only, and reseal the recor d.

3 Pursuant to Evidence Code sections 459, subdivision (a) and 452,

subdivision (d), on our own motion, we take judicial notice of the trial court’s minutes from Orange County Superior Court case No. 05NM08202, which show Vega was

convicted on January 19, 2006, of, inter alia, three counts of indecent exposure in

violation of Penal Code section 314, subdivision 1, and one count of annoying a child under 18 years of age in violation of Penal Code section 647.6, subdivision (a). The

minutes further show that a notice of appeal from the judgment of conviction in that case was filed on Vega’s behalf on March 21, 2006

. We also take judicial notice of the Orange County Superior Court Appellate Division’s order on appeal (case No. AP14598) affirming Vega’s 2 006 judgment of conviction , entered on August 3, 2007, and remittitur, filed on September 24, 2007

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(1973) 10 Cal.3d 72 because our record shows Vega is no longer in custody for his

convictions for those offenses.

Given that Vega has not raised any issues for our review regarding his

appeal from the trial court’s order revoking his parole, we affirm that order. ( See People

v. Kelly (2006) 40 Cal.4th 106, 120, 124.)

D ISPOSITION

The order is affirmed.

FYBEL, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.