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The People v. Jose Alejandro Espinoza

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)


January 21, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSE ALEJANDRO ESPINOZA, DEFENDANT AND APPELLANT.

(Super. Ct. No. CRF081303)

The opinion of the court was delivered by: Blease, J.

P. v. Espinoza

CA3

Received for posting on 1/25/11

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This appeal is brought pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

As part of a bargain, defendant Jose Alejandro Espinoza pleaded no contest to assault with a deadly weapon, a knife, and petty theft of a merchant, in exchange for the dismissal of robbery and burglary charges, and a promise of no immediate state prison time. (Pen. Code, §§ 245, subd. (a)(1), 484/490.5.)

The written factual basis for the plea states that on May 8, 2008, defendant "willfully assaulted Brian K[.] with a deadly weapon, to wit a knife, and took property of less than $400 value from Winco Foods with intent to steal."

On November 24, 2008, the trial court suspended imposition of sentence and granted defendant probation, in conformity with the plea bargain.

On April 7, 2009, the probation officer filed a petition alleging defendant had associated with known gang members, in violation of a probation condition.

On June 19, 2009, the parties agreed to dismiss the probation violation petition, but modify defendant's probation to strengthen the anti-gang conditions.

On November 19, 2009, the probation officer filed a petition alleging defendant possessed a weapon, committed two penal offenses, failed to submit to an alcohol test, consumed alcohol, and failed to report promptly to the probation officer that he had had contact with law enforcement officers. The trial court summarily revoked probation.

A pre-hearing conference on the probation violation petition was set for January 25, 2010.

On January 13, 2010, the probation officer filed a petition alleging defendant committed a penal offense, twice consumed alcohol, twice failed to submit to an alcohol test, and associated with a known gang member. The trial court again summarily revoked probation.

On February 19, 2010, the parties agreed that defendant would admit "straight up"--with no promises--three allegations in the first pending petition and four allegations in the second pending petition, and the remaining allegations would be dismissed. In the first petition, defendant admitted that on September 26, 2009, he consumed alcohol, failed to submit to a chemical test, and failed to promptly report to his probation officer that he had had contact with law enforcement officers. In the second petition, he admitted that on December 19, 2009, and January 12, 2010, he consumed alcohol and failed to submit to chemical tests.

At sentencing on April 12, 2010, the trial court noted the facts summarized from the police reports showed that when defendant and his cohorts were caught shoplifting, and when defendant was partially handcuffed by a guard, he fought back and a cohort stabbed the guard, allowing defendant to escape. Based on defendant's multiple probation violations, the trial court declined to reinstate probation.

Based in part on defendant's prior juvenile record, the trial court imposed the upper term of four years in prison for assault with a deadly weapon, and sentenced him to time served for the misdemeanor theft charge. Defendant timely appealed. The trial court granted him a certificate of probable cause.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.

The trial court awarded defendant 94 days of actual credit and 46 days of presentence conduct credit. Pursuant to this court's Miscellaneous Order No. 2010-002, filed March 16, 2010, we deem defendant to raise whether recent amendments to section 4019 apply retroactively to his pending appeal and entitle him to additional conduct credits. (See Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)

Defendant was convicted of assault with a deadly weapon, a "serious" felony that disqualifies him from the new formula. (Pen. Code, §§ 1192.7, subd. (c)(31); 4019, subds. (b)(2) & (c)(2); People v. Myers (2007) 148 Cal.App.4th 546, 554 [Prop. 21 amendments mean it is no longer necessary to plead and prove personal use of deadly weapon to make assault with a deadly weapon a strike]; see People v. Delgado (2008) 43 Cal.4th 1059, 1070, fn. 4.) Therefore, he is not entitled to additional credit, whether or not the new formula applies retroactively.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

We concur: RAYE , P. J. MAURO, J.

20110121

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