Filed 1/15/16 P. v. Valenzuela CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD DAVID VALENZUELA,

Defendant and Appellant. H042138 (Santa Clara County Super. Ct. No. F1348157)

Defendant Richard David Valenzuela pleaded no contest to one count of

possession of metal knuckles, a felony (Pen. Code, § 21810). 1 The court initially

suspended imposition of sentence and grante d three years probation on the condition

defendant serve 30 days in county jail . B ut after defendant was convicted of second

degree burglary in another case, and after he admitted other probation violations, the

court modified defendant’s probation to inc lude

, among other things, an increase in his

jail term to nine months

. We appointed counsel to represent defendant in this court. Appointed counsel

filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ), which

stated the case a nd the facts, but raised no specific issues on appeal. We notified

defendant of his right to submit written argument on his own behalf within 30 days. The

1 Unless otherwise stated , further statutory references are to the Penal Code.2

30 days have elapsed, and we have received no written argument from defendant. 2 We

will conclude t here is no arguable issue on appeal and we will affirm the judgment.

F ACTS

At approximately 2:15 p.m. on September 2, 2 01 3, a Santa Clara County Sherriff’s

deputy saw defe ndant walking on the sidewalk near the intersection of Monterey Road

and Luchessa Av enue in Gilroy, California. The deputy asked if he could speak with

defendant and defendant agreed. While talk ing with defendant, the deputy noticed metal

knuckles sticking out of defendant’s left pocket. The deputy seized the metal knuckles

and placed defendant under arrest.

P ROCEDURAL H ISTORY

In September 2013, the district attorney charged defendant with one count of

possession of metal knuckles, a felony (§ 21810).

In October 2013, the parties entered into a negotiated disposition. Pursuant to

the ir agreement, defe ndant pleaded “no contest” to possess ion of metal knuckles

(§ 21810) . The terms of the agreement included “no state p rison ” and 30 days in county

jail “top/bottom. ”

2 Our letter was returned to the court with the hand

- written notation “not @ this address” and a post office label that stated: “Return to sender[;] Attempted

– Not known; unable to forward.” We subsequently asked appellate counsel to report on his effor ts to contact defendant. Counsel reported: “I have been unable to reach him. I obtained his last known address and telephone numbers from the public defender who represented

him. The letter I sent to that address was returned as undeliverable. One of the telephone numbers was out of service. The person who answered the other telephone number said he had not spoken to [defendant] for about two years and believed he was homeless. I conducted online searches of the Santa Clara County jail and CDCR [(Cal ifornia Department of Corrections and Rehabilitation)]. [Defendant] was not in jail in Santa Clara [County] or imprisoned in California.”3

In April 2014, the court suspended imposition of sentence and granted three years

formal probation. The conditions of defendant’s probation included 30 days in county

jail consecutive to time imposed in any other case, with credit for nine days served . T he

court imposed fines and fees, including: (1) a restitution fine of $308 (§ 1202.4); (2) a

probation revocation restitution fine of $280 (§ 120 2.44); (3) a court security fee of $40

(§ 1465.8) ; (4) a criminal conviction assessment of $30 (Gov. Code, § 7 0373) ; (5) a

criminal justice administration fee of $259.50 (Gov. Code, §§ 29550, 29550.1, 29550.2) ;

and (6) a probation supervision fee of $110 per month (§ 1203.1b)

. On June 29, 2014, at 1:19 a.m., Gilroy Police officers responded to a report of a

man on the roof of a Sports Authority store. When police climbed onto the roof of that

store, the officers saw defendant and a woman standing on the roof of a nearby store.

The officers apprehended defendant and the woman as they attempted to run away . The

officers recovered burglary tools, two flashlights, two

- way radios, and a set of

screwdrive rs. The woman had two baggies of methamphetamine in her purse.

Defendant was subsequently charged in a separate case with one count of

attempted second degree burglary (§§ 664, 459, 460, subd. (b) ; Santa Clara County

Superior Court case N o. F1451701). Defendant was also charged with violating his

probation in the metal knuckles case.

In August 2014, defendant admitted violating his probation . He also pleade d no

contest to the second degree burglary offense. He was reinstated on probation in the

metal knuckles case and granted probation in the burglary case.

In January 2015, the probation officer filed a petition to modify the terms of

defendant’s probatio n in both cases

. The probation officer advised the court that

defendant had been arrested on an unrelated matter on December 8, 2014

, and that he

remained in custody subject to a probation hold

. In the possessi on of metal knuckles

case, the probation d ep artment alleged defendant failed to: (1) report for office visits

with his probation officer in May and October of 2014; (2) provide proof of employment4

or enrollment in an education or training program; and (3) make himself available for

search.

The p robation officer reported that d efendant’s criminal history included three

prior felony convictions for : (1) unlawful possession of a weapon (former § 12020,

subd. (a)(1) ); (2) possession of ammunition by a person prohibited from owning a firearm

(former § 12316

, subd. (b) ) ; and (3) possession of a controlled substance (Health & Saf.

Code, § 11377, subd. (a)). Defendant

— who was 34 years old

— also had 25 prior

misdemeanor convictions for a variety of offenses, including using controlled substances

(Health & Saf. Code, § 11550, subd

. (a)); driving under the influence (Veh. Code,

§ 23152, subd (b)); driving on a suspended license (Veh. Code, § 14601.2); prowling

(§ 647, subds. (f), (h), & (i)); possession of burglary tools (§ 466 ); receiving stolen

property (§ 496) ; various forms of vandalism (§§ 594, 594.2); public intoxication (§ 647,

subd. (f)); disturbing the peace (§ 415); resisting arrest (§ 148, subd. (a)(1)); unlawful

sexual intercourse with a minor (§ 261.5, subd. (c)) ; and willful violation of a prote cti ve

order (§ 166, subd. (c)(1)).

At the January 22, 2015 hearing on the petition to modify probation, the parties

entered into a negotiated disposition

. Defendant admitted the violations of probation and

was continued on probation on the original terms and conditions in both cases , except the

court : (1) deleted the unserved portion of defendant’s jail sentence (64 days) that was a

condition of his probation in the burglary case ; (2) ordered defendant to serve nine

months in jail as a condition of proba tion in the metal knuckles case and 180 days in jail

for the probation violation, concurrent to the term on the metal knuckles case ;

(3) modified the amount of the probation supervision fee, reducing it to $30 per month

each for the metal knuckles convicti on and the burglary conviction, for a total of $60 per

month ; and (4) awarded custody credits against each of the jail terms imposed.

In February 2015, defendant filed a petition for resentencing under Proposition 47

(§ 1170.18, subd. (a)). The distric t attorney agreed the petition should be granted in the5

burglary case, but opposed the petition in the metal knuckles case , arguing a conviction

for possession of metal knuckles does not qualify for resentencing under Proposition 47.

The trial court denie d the petition in the possession of metal knuckles case

“because only certain theft and simple drug possession charges are affected by the

resentencing provisions of” section 1170.18 and none of the statutory provisions in

Proposition 47 “authorize misdeme anor treatment” of defendant’s conviction for

possession of metal knuckles.

Defendant appeals his conviction in the possession of metal knuckles case only.

D ISCUSSION

We reviewed the entire record under Wende

, supra , 25 Cal.3d 436. We find

defendant was adequately advised of his rights and the consequences of his plea.

Defendant freely, knowingly, and intelligently waived his rights and entered his plea , and

n o sentencing error appears. The trial court properly denied defendant’ s p etition under

Proposition 47 in the possession of metal knuckles case

. We thus conclude there is no

arguable issue on appeal.

D ISPOSITION

The judgment is affirmed._______________________________ Márquez, J.

WE CONCUR:

_____________________________________ Rushing, P. J.

______________________________________ Grover, J.