People v. Hernandez CA4/3 ( 2014 )

Filed 9/4/14 P. v. Hernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G049024
v. (Super. Ct. No. 13CF1955)
STEVEN AKEEL HERNANDEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Dan
McNerney, Judge. Affirmed.
Reed Webb, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Plaintiff and Respondent.
* * *
A jury convicted defendant Steven Akeel Hernandez of having committed
vandalism causing less than $400 in damages (Pen. Code, § 594, subd. (a) & (b)(2)(A);
all further statutory references are to this code). Because the jury also found the
vandalism was committed for the benefit of a criminal street gang (§ 186.22, subd. (d)),
the crime is a felony. The trial court suspended imposition of sentence and placed
defendant on three years formal probation, with conditions that included service of 170
days in the county jail, and the payment of a restitution fine and fees. He filed a timely
notice of appeal.
We appointed counsel to represent defendant. Counsel filed a brief
summarizing the facts of the case and, while not arguing against defendant, advised us he
found no issues to argue in his behalf. (Anders v. California (1967) 386 U.S. 738 [87
S.Ct. 1396, 18 L.Ed.2d 493] (Anders); People v. Wende (1979) 25 Cal.3d 436 (Wende).)
We notified defendant he could file written argument on his own behalf, but the period to
do so has passed and we have received no communication from him.
FACTS
Park patrons alerted Sandra Garcia, a worker at a community center, to
apparent graffiti spraying. From her window, she saw a man shaking a can, then moving
to a tree, making a circular motion. She called 911 and reported the incident. Garcia
described two men. She identified defendant as the person she had seen with the spray
can.
Police officer Abelardo Oropeza was nearby. He noticed two persons,
including defendant, standing near the tree. He also observed graffiti on the tree and on
the wall of a nearby handball court. The paint was fresh. Oropeza confronted the two
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persons and defendant became angry and yelled profanities at the officer. When
defendant was apprehended shortly thereafter, Oropeza noticed paint on his finger.
Oropeza also qualified as an expert on criminal street gangs. He testified as
to the existence and nature of a criminal street gang named the Alley Boyz, identified the
individual arrested with defendant as a member of that gang, and expressed the opinion
defendant acted for the benefit of the Alley Boyz gang.
DISCUSSION
We independently examined the record, including a sealed transcript of a
hearing on defendant’s unsuccessful motion for discovery of Officer Oropeza’s personnel
records (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and found no arguable issue.
Appellate counsel’s opening brief suggests we consider two other issues:
(1) whether the court erred in failing to bifurcate the vandalism charge from the gang
enhancement; and (2) whether the court erred in admitting certain out-of-court statements
for a nonhearsay purpose. We recognize that, in AndersWende appeals, we are obligated
to briefly describe the defendant’s crimes, the facts and procedural history of his or her
conviction, plus the punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 123-
124.) Also, if the defendant personally files a brief, we must address the issues raised by
him or her. (Id. at p. 124.) But there is no such obligation with respect to so-called
“‘arguable-but-unmeritorious’ issues” suggested by counsel. (People v. Johnson (1981)
123 Cal.App.3d 106, 111.) Therefore, as to these issues, we agree with counsel they are
not meritorious and therefore decline to address them.
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DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
THOMPSON, J.
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