People v. Saiz CA3 ( 2021 )

Filed 4/29/21 P. v. Saiz CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C091818
Plaintiff and Respondent, (Super. Ct. Nos. 19CF01357,
19CM04747)
v.
MIGUEL ENRIQUE SAIZ,
Defendant and Appellant.
Appointed counsel for defendant Miguel Enrique Saiz asked this court to review
the record and determine whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436.) Our review has determined we lack appellate jurisdiction
over defendant’s appeal, and we will transfer it to the appellate division of the superior
court.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
1
BACKGROUND
This appeal concerns two separate cases. In the first, case No. 19CF01357,
deputies searched defendant outside a convenience store and found a large amount of
marijuana in a duffle bag and a shotgun shell in his pocket. The prosecution filed a
complaint alleging one count of possession of ammunition (Pen. Code, § 30305, subd.
(a)(1); undesignated statutory references are to the Penal Code) and one count of
possession of more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd.
(b)(2)). Defendant then failed to appear for a hearing, resulting in case No. 19CM04747,
in which the prosecution filed a complaint alleging one misdemeanor count of failing to
appear. (§ 1320, subd. (a).) The prosecution also specially alleged defendant was
released from custody on bail or his own recognizance at the time of the offense.
(§ 12022.1.)
In case No. 19CF01357, the prosecution amended the complaint to reduce the
possession of ammunition count to a misdemeanor and defendant pleaded no contest to
both counts. In case No. 19CM04747, defendant pleaded no contest to the failure to
appear count, and the special allegation was dismissed.
At the sentencing hearing, the trial court sentenced defendant to a one-year term in
case No. 19CF01357 and a six-month term in case No. 19CM04747. Both terms were to
run concurrently with a three year sentence the court imposed in a separate felony case.
For each case, the court imposed a $150 restitution fine (§ 1202.4), and for each count,
the court imposed a $40 court operations assessment (§ 1465.8) and a $30 conviction
assessment (Gov. Code, § 70373). The court waived the presentencing investigation
report fee and public defender fees based on defendant’s ability to pay.
The trial court granted defendant a certificate of probable cause and defendant
filed a notice of appeal.
2
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (People v. 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 the
opening brief. More than 30 days elapsed and we received no communication from
defendant.
This court has no jurisdiction in case No. 19CF01357 because “a defendant is not
‘charged with a felony’ . . . until an information or indictment is filed or a complaint is
certified to the superior court pursuant to section 859a.” (People v. Nickerson (2005)
128 Cal.App.4th 33, 38.) Although the complaint alleged one count of felony possession
of ammunition, there was no preliminary hearing and defendant entered his plea to one
misdemeanor count of possession of ammunition and one count of possession of more
than 28.5 grams of marijuana, a misdemeanor. The fact that defendant was sentenced to
state prison in a separate felony case on the same date he was sentenced in case
No. 19CF01357 does not matter. (People v. Shoup (2001) 89 Cal.App.4th 420, 421.) We
will transfer case No. 19CF01357 to the superior court appellate division. (Gov. Code,
§ 68915.)
The same must be done for case No. 19CM04747, which was filed as a
misdemeanor case and always was a misdemeanor case. We will transfer case
No. 19CM04747 to the superior court appellate division, as well. (People v. Nickerson,
supra, 128 Cal.App.4th at pp. 36-40; People v. Shoup, supra, 89 Cal.App.4th at p. 421.)
3
DISPOSITION
The appeal for case Nos. 19CF01357 and 19CM04747 is transferred to the
appellate division of the superior court.
HULL, Acting P. J.
We concur:
MAURO, J.
RENNER, J.
4