People v. Aviles CA4/2 ( 2015 )

Filed 10/13/15 P. v. Aviles CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063683
v. (Super.Ct.Nos. RIF1410734 &
SWF1402875)
HIMBLER AVILES,
ORDER MODIFYING OPINION
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
The opinion filed in this matter on September 30, 2015, is modified as follows:
The following paragraphs should be inserted above the section titled “I.
PROCEDURAL BACKGROUND.”
Defendant and appellant Himbler Aviles simultaneously pled guilty
in two separate cases to impersonating a police officer (Pen. Code, § 538d,
subd. (c), count 1, case No. RIF1410734), possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a), count 1, case No. SWF1402875)
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and trespass (Pen. Code, § 603, count 2, case No. SWF1402875). Pursuant
to defendant’s plea agreement, the court sentenced defendant in the former
case to nine days of incarceration with credit for time served and, in the
latter case, to 16 days of incarceration with credit for time served. The
court additionally imposed various fines and fees.
Defendant filed separate notices of appeal from each of the two
cases the day before he entered his pleas. Thereafter, this court appointed
counsel to represent defendant. Counsel has filed a brief under the
authority of People v. Wende (1979) 25 Cal. 3d 436 and Anders v.
California (1967) 386 U.S. 738, setting forth a statement of the case and
identifying two potentially arguable issues: (1) whether defendant was
advised of his constitutional rights, the consequences of pleading guilty,
and whether he waived those rights before entering his pleas; and (2)
whether defense counsel committed some unspecified act or acts of
prejudicial ineffective assistance of counsel. We affirm.
Except for this modification, the opinion remains unchanged. This modification
does not affect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
1 Defendant also simultaneously pled guilty to four counts of domestic battery
(Pen. Code, § 243, subd. (e)(1), counts 1-4) in another case, case No. SWM1309498, for
which he was sentenced to 36 months’ probation with a term requiring 90 days
incarceration. However, he has not filed an appeal in that case.
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KING
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.
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Filed 9/30/15 (unmodified version)
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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063683
v. (Super.Ct.Nos. RIF1410734 &
SWF1402875)
HIMBLER AVILES,
OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Edward D. Webster,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
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I. PROCEDURAL BACKGROUND
On August 14, 2014, the People charged defendant by felony complaint in case
No. RIF1410734 with possession of methamphetamine (count 1; Health & Saf. Code,
§ 11377, subd. (a)), felony impersonating a police officer (count 2; Pen. Code, § 146a,
subd. (b)(3)), and two counts of misdemeanor impersonating a police officer (counts 3 &
4; Pen. Code, § 538d, subd. (c)). On September 29, 2014, the People charged defendant
by felony complaint in case No. SWF1402875 with possession of methamphetamine
(count 1; Health & Saf. Code, § 11377, subd. (a)), being under the influence of a
controlled substance (count 2; Health & Saf. Code, § 11550, subd. (a)), and trespass for
vandalism (count 3; Pen. Code, § 603).
On March 27, 2015, defendant signed and initialed plea agreements in both cases.
Defendant initialed all six provisions of each plea agreement advising him of his
constitutional rights to a speedy and public trial by a judge or jury, to face and cross-
examine witnesses against him, to compel witnesses to attend trial and present evidence
in his defense, against self-incrimination, to testify on his behalf, to be represented by a
lawyer at all proceedings paid for by the state if he could not afford one, and to a court
reporter at all proceedings.
On the plea agreement in case No. RIF1410734, defendant initialed two applicable
provisions informing him of the consequences of his plea. On the plea agreement in case
No. SWF1402875, defendant initialed five applicable provisions informing him of the
consequences of his plea. Defendant signed both agreements indicating he read and
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understood the agreements in their entirety. Defense counsel signed the agreements
reflecting his belief that defendant understood his constitutional rights and the
consequences of the pleas.
At defendant’s plea hearing, the court advised defendant he had all the
constitutional rights enumerated in his plea agreements, the provisions of which
defendant had initialed.2 The court asked if defendant signed the forms understanding
everything in them. Defendant answered that he had signed the forms and understood the
contents therein. The court asked if defendant understood he was giving up his right to a
trial, to confront and produce witnesses, and his privilege against self-incrimination.
Defendant responded he understood. The court asked defendant if he understood the
consequences of his pleas. Defendant answered that he did.
The court noted that defense counsel “worked a miracle for you, he and the
legislators, and the citizens passing Prop[osition] 47. Because I would have never
guessed that you would be where you are now before October of 2014. So things have
worked out well for you.” Defendant entered his pleas as noted, ante.
2 The minute orders for the hearing reflect the court advised defendant of his
rights to a speedy and public trial by judge or jury, to confront and cross-examine
witnesses, to present evidence, and his privilege against self-incrimination. They further
indicate defendant waived those rights. The minute orders further read that the “Court
finds based on inquiry and examination of def[endant], that def[endant] has the ability to
understand and does understand his/her constitutional rights.”
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II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he
has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal. 4th 106, we have
independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.
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