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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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. G05 0380
(Super. Ct. No. 13CF3749 )

O P I N I O N

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

Prickett , Judge. Affirmed.

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

Defendant an d 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
, D etective Anthony Nguyen testified to the following: On t he morning of November 27, 2013, Robert Mayorga, a security officer at a store , saw defendant remove security tops from two bottles of liquor.

D efendant conceal ed the bottles in his clothes and left the store without paying for the

items. Outside the store, Mayorga and his co

- work e r Ryan Rose detained defendant,

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

Detective N guyen arrived at the store

. D efendant 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 Mirand

a v. Arizona (1966) 384 U.S. 436. Defendant told Nguyen he went

into th e store with intentions to steal the bottles of liquor and sell the m 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 convict ion (count 2; §§ 666, subd. (b), 484, subd

. (a), 488). The information also alleged defendant had suffered a prior strike conviction as we ll as a prior prison

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

I n 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 pri son conviction, but suspended execution of sentence and placed defendant on supervised probation for three years

. A s to count 2 , the court imposed a three

- year sentence, but stayed execution of sentence pursuant to section 654

. Defendant’s probation cond itions included that he enroll in and successfully complete a six

- month

Sal vation 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 pro bation). The court

ordered def

endant to report to the probation department within 72 hours of his release from custody.

I n March 2014, the People petitioned for defendant’s arraignment on a probation violation. The petition alleged d efendant was released from custody on February 25, 2014
, and failed to report to the probation office within 72 hours thereafter. The petition further alleged d efendant had twice fled on foot from hi s probation officer

.

D efendant waived his right to a probation hearing and admitted h e violated

the terms o f his probat ion.

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 im posed probation revocation fine was due

. The court impos ed but s uspended a $300 parole /supervision revocation fine.

After defendant filed a timely notice of appeal from his guilty plea
, t he court denied his request for a certificate of probable cause

.

On March 1 3 , 201 5 , 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 Februar y 24, 2015, the Orange County Superior Court4

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

of

. . . section 1170.18 and to sentence him as a misdemean a n t, ” and had thereby

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

a ttached to defendant’s motion showed Judge Ka z uharu Makino had designated defendant’s felony convictions as misdemeanors and resen tenced him to 364 days in jail.

D efendan t 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 c ounsel
, 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 t o suggest that we consider whether d efendant’s fines under section s 1202.4 and

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