People v. Victoriano CA1/1 ( 2015 )

Filed 4/13/15 P. v. Victoriano CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A143396
v.
CARLOS AVALOS VICTORIANO, (Marin County
Super. Ct. No. SC187975)
Defendant and Appellant.
In this appeal, counsel for appellant Victoriano indicates he has reviewed the
record in the matter and has decided to file a brief pursuant to People v. Wende (1979)
25 Cal.3d 436. He has advised appellant of this conclusion and indicated to Victoriano
that he may decide to submit to this court a written statement of legal issues appellant
believes are available here. Thirty days have passed and we have received no
supplemental statement from appellant. We therefore have conducted an independent
review of the record in this case. We find the appeal appropriate under California Rule of
Court, rule 8.304, subdivision (b). We affirm the judgment.
STATEMENT OF THE CASE
The District Attorney of Marin County filed a complaint on February 24, 2014,
charging appellant with one count of second degree robbery, a violation of Penal Code1
section 211, and one count of assault with a deadly weapon, a violation of section 245,
1
Unless otherwise stated, all statutory references are to the California Penal Code.
subdivision (a)(1). The alleged deadly weapon was a knife. Each count had an allegation
of great bodily injury pursuant to section 12022.7, subdivision (a), and each offense was
alleged as a strike based on section 1170.12, subdivisions (a), (b), and (c). Each was
alleged as a serious and violent felony pursuant to sections 667.5, subdivision (c)(9) and
1192.7, subdivision (c).
On June 4, 2014, appellant eventually entered a guilty plea to count two, a
violation of section 245, subdivision (a)(1) and all but one of the enhancements. The
prosecution dismissed count one and the great bodily injury allegation.
On October 17, 2014, appellant was sentenced to the aggravated term of four years
in state prison. Appellant’s appeal contains no certificate of probable cause.
STATEMENT OF FACTS2
On February 6, 2014, the police were advised of a stabbing located on Woodland
Avenue in San Rafael. The victim was attempting to unlock his front door when
appellant approached and demanded his cell phone. When the victim told appellant he
had no such item, Victoriano proceeded to stab him two times. Appellant then knocked
the victim to the ground and took his wallet, containing $60. When the victim yelled for
assistance, appellant tried to stab him two more times. During this confrontation, the
victim detected the odor of alcohol on the person of Victoriano. After the police arrived,
they took the victim to the hospital for medical treatment.
On February 22, 2014, the victim saw appellant walking on Woodland Avenue
and he alerted the police. Victoriano was then arrested and he confessed to the incident
on February 6, 2014. He affirmed he wanted to steal a cell phone. Appellant conceded
that he was drinking that day and becomes aggressive when he is in this condition.
2
The statement of facts is drawn from the Marin County Probation Department report.
2
ANALYSIS
In this case, we find the appellant was properly advised of his rights during the
change of plea. There is no certificate of probable cause attached to this appeal, and no
meritorious issues emerge from a review of the record. The appellant was properly
represented by appointed counsel in the proceedings below. We therefore affirm the
judgment.
3
_________________________
Dondero, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Banke, J.
4
A143396
5