People v. Gallardo CA2/2 ( 2016 )

Filed 2/4/16 P. v. Gallardo CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B264586
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA088767)
v.
GUSTAVO GALLARDO,
Defendant and Appellant.
THE COURT:*
Gustavo Gallardo (defendant) appeals following his plea of “no contest” in case
No. GA088767 to one count of vandalism over $400 in damage in violation of Penal
Code section 594, subdivision (a). Defendant was advised of his constitutional rights and
the nature and consequences of the plea, which he stated he understood. The trial court
expressly found defendant’s waivers and plea were voluntary, knowing and intelligent.
Pursuant to the terms of the plea bargain the court sentenced defendant to two years in the
county jail. After a contested restitution hearing, the court ordered defendant to pay
restitution in the amount of $10,000.
*
BOREN, P.J., CHAVEZ, J., HOFFSTADT, J.
The preliminary hearing transcript shows that: On June 2, 2012, at approximately
10:40 a.m. police responded to a report of vandalism at a lumberyard; and a police officer
observed defendant “standing in the middle of some equipment . . . hammering on some
equipment and occasionally using some type of pry device and working on the
equipment.”1
Defendant filed a timely notice of appeal from the judgment in which he checked
the preprinted boxes indicating his appeal was “based on the sentence or other matters
occurring after the plea”; he did not obtain a certificate of probable cause. We appointed
counsel to represent defendant on this appeal. After examination of the record, counsel
filed an “Opening Brief” pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende),
raising no issues. On November 10, 2015, we advised defendant that he had 30 days
within which to personally submit any contentions or issues that he wished us to
consider. No response has been received to date.
Defendant’s guilty plea and failure to obtain a certificate of probable cause limit
the potential scope of defendant’s appeal to “grounds that arose after entry of the plea and
do not affect the plea’s validity” or “the denial of a motion to suppress evidence under
Penal Code section 1538.5.” (Pen. Code, § 1237.5, Cal. Rules of Court, rule 8.304(b).)
Defendant was represented by counsel throughout the proceedings. There was no
error in the sentence, which was in accord with applicable law and the negotiated
disposition. At the restitution hearing, the trial court heard testimony from a 27-year
employee of the victim company who was knowledgeable of the amount of the damaged
property, and following argument by counsel, awarded the victim $10,000 in restitution,
which represented the fair market value of the damaged property. (See Article I, section
28, subdivision (b), of the California Constitution [all persons who suffer losses as a
1 In addition to vandalism, defendant was also charged with attempted grand theft
and second degree commercial burglary in violation of Penal Code sections 664, 487,
subdivision (a), and 459, respectively, but those counts were dismissed as part of
defendant’s plea agreement.
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result of criminal activity shall have the right to seek and secure restitution from the
persons convicted of the crimes causing the losses they suffer].)
We have examined the entire record and have found that no arguable issues of any
sort exist, let alone issues cognizable without a certificate of probable cause. We are
satisfied that defendant’s attorney has fully complied with his responsibilities. (People v.
Kelly (2006) 40 Cal. 4th 106, 109-110; Wende, supra, 25 Cal.3d at p. 441.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
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