Filed 8/12/15 People v. Arias CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

SERGIO ANTONIO ARIAS,

 Defendant and Appellant.

 G050380

 (Super. Ct. No. 13CF3749)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gregg 

Prickett, Judge. Affirmed.

Robert L.S. Angres, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney 

General, Charles C. Ragland and Meredith S. White, Deputy Attorneys General, for 

Plaintiff and Respondent.

* * *
2

The People’s complaint charged defendant with felony second degree 

commercial burglary and felony theft with a prior conviction.

At the preliminary hearing on the complaint, Detective Anthony Nguyen 

testified to the following: On the morning of November 27, 2013, Robert Mayorga, a 

security officer at a store, saw defendant remove security tops from two bottles of liquor. 

Defendant concealed the bottles in his clothes and left the store without paying for the 

items. Outside the store, Mayorga and his co-worker Ryan Rose detained defendant, 

retrieved the two bottles of liquor, and escorted him back into the store.

Detective Nguyen arrived at the store. Defendant was in the store’s 

security office and was not handcuffed. In the office were defendant, Mayorga, Rose, 

Nguyen, and Nguyen’s partner. Nguyen told defendant he was not under arrest and that 

Nguyen just wanted to hear his side of the story. Nguyen did not read defendant his 

rights under Miranda v. Arizona (1966) 384 U.S. 436. Defendant told Nguyen he went 

into the store with intentions to steal the bottles of liquor and sell them for $10 each. The 

total value of the two bottles of liquor was about $70.

The court held defendant to answer on both charges.

The People’s information charged defendant with felony second degree 

commercial burglary (count 1; Pen. Code, §§ 459, 460, subd. (b))

1

and felony theft with a 

prior conviction (count 2; §§ 666, subd. (b), 484, subd. (a), 488). The information also 

alleged defendant had suffered a prior strike conviction as well as a prior prison 

conviction. (§§ 667, subds. (d) & (e)(1), 667.5, subd. (b), 1170.12, subds. (b) & (c)(1).)

In January 2014, defendant pleaded guilty to both counts and admitted he 

had suffered a prior strike conviction and a prior prison conviction.

At the sentencing hearing, the court struck for purposes of sentencing

defendant’s prior strike conviction in the interests of justice pursuant to section 1385. As 

 

1

All statutory references are to the Penal Code.
3

to count 1, the court imposed the upper term of three years plus one year for the prior 

prison conviction, but suspended execution of sentence and placed defendant on

supervised probation for three years. As to count 2, the court imposed a three-year 

sentence, but stayed execution of sentence pursuant to section 654. Defendant’s 

probation conditions included that he enroll in and successfully complete a six-month 

Salvation Army program and pay a $300 state restitution fine pursuant to section 1202.4 

or 1202.4, subdivision (b), and a $300 probation revocation restitution fine pursuant to 

section 1202.44 (to become effective only upon final revocation of probation). The court 

ordered defendant to report to the probation department within 72 hours of his release 

from custody.

In March 2014, the People petitioned for defendant’s arraignment on a 

probation violation. The petition alleged defendant was released from custody on 

February 25, 2014, and failed to report to the probation office within 72 hours thereafter. 

The petition further alleged defendant had twice fled on foot from his probation officer.

Defendant waived his right to a probation hearing and admitted he violated 

the terms of his probation.

On May 16, 2014, the court declined to reinstate probation and imposed the 

previously suspended four-year prison term. The court awarded defendant 301 days of 

presentence confinement credit. The court also declared that the previously imposed 

probation revocation fine was due. The court imposed but suspended a $300

parole/supervision revocation fine.

After defendant filed a timely notice of appeal from his guilty plea, the 

court denied his request for a certificate of probable cause.

On March 13, 2015, defendant moved this court for an order striking his 

opening brief on appeal and permitting him to file a new opening brief pursuant to People

v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Defendant 

made this request “because on February 24, 2015, the Orange County Superior Court 
4

granted his petition to reduce his offenses to misdemeanors within the meaning 

of . . . section 1170.18 and to sentence him as a misdemeanant,” and had thereby 

rendered moot the issues argued in his initial opening brief. Superior Court minutes 

attached to defendant’s motion showed Judge Kazuharu Makino had designated 

defendant’s felony convictions as misdemeanors and resentenced him to 364 days in jail. 

Defendant had been released from custody.

We granted defendant’s motion and struck his first opening brief. We filed 

his new opening brief, in which defense counsel, pursuant to People v. Wende, supra, 25 

Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, raised no specific issues other 

than to suggest that we consider whether defendant’s fines under sections 1202.4 and 

1202.44 should “be lowered now that his offenses have been deemed misdemeanors.” 

Defendant was given an opportunity to file written argument on his own behalf, but he 

did not do so.

We have independently reviewed the entire record and are unable to find an 

arguable appellate issue.

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.