People v. Ruiz CA4/2 ( 2014 )

Filed 11/6/14 P. v. Ruiz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E061325
v. (Super.Ct.No. FWV1400672)
JOSEPH RAUL RUIZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Victor R. Stull,
Judge. Affirmed.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Joseph Raul Ruiz pled no contest to first degree burglary
(count 5; Pen. Code, § 459). As provided in the plea agreement, the court granted
defendant three years formal probation.
After counsel filed the notice of appeal, this court appointed counsel to represent
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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, a statement of the facts, and identifying two potentially arguable issues:
whether defendant’s plea was constitutionally valid and whether defendant’s alcohol
probation terms should be stricken. We affirm.
FACTUAL AND PROCEDURAL HISTORY1
On February 24, 2014, Ontario Police Officer Luis Mena was dispatched with his
partner to a burglary in progress at an apartment complex. As he drove into an alley of
the apartment complex, he saw an open garage with numerous objects stacked in front of
it. Defendant and Rosa Guerrero, defendant’s codefendant,2 were standing in front of the
garage. They matched the description of the suspects Officer Mena had been provided.
Guerrero was holding a cell phone.
Officer Mena looked inside the garage where he saw the drywall had been broken
away, the “two-by-four studs were exposed,” and he could see into the apartment behind
the wall. Officer Mena then spoke with the apartment manager, Juan Razurra. Razurra
said he was familiar with defendant and Guerrero as they had been squatting in the
garage since the occupants of the apartment had been recently evicted. Razurra had
given defendant and Guerrero two days to vacate the garage.
Officer Mena contacted one of the juveniles who occupied the apartment that was
1 The parties stipulated the preliminary hearing transcript would provide the
factual basis for the plea.
2 Guerrero is not a party to this appeal.
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visible through the hole in the garage wall. The juvenile said he and his brother were
inside the apartment when they heard loud banging coming from one of the bedrooms.
When he looked in the bedroom, he saw a man and woman. He became scared, so he ran
outside and contacted Razurra. The juvenile identified defendant and Guerrero as the
individuals whom he saw inside the bedroom.
A cell phone and charger were discovered missing from the apartment. Officer
Mena recovered the cell phone from Guerrero. Officer Mena then arrested defendant and
Guerrero. Officer Mena’s partner transported defendant to the police station.3 A cell
phone charger was found in the back of the patrol unit where defendant had been seated.
A cellophane wrapper containing what appeared to be, and tested presumptively positive
for, methamphetamine was found on Guerrero’s person.
The People charged defendant by information with first degree burglary, person
present (count 1; Pen. Code, § 459) and receiving stolen property (count 2; Pen. Code,
§ 496, subd. (a).) On May 23, 2014, defendant entered into a plea agreement whereby he
pled no contest to an interlineated count 5 charge of first degree burglary in return for the
People’s agreement to drop the allegation that a person was present, dismissal of the
remaining counts, dismissal of two other misdemeanor cases charged against him, and a
grant of three years formal probation.
Defendant initialed the boxes adjacent to the provisions of his plea agreement
informing him of his rights and the consequences of his plea. Defendant initialed the box
3 Officer Mena transported Guerrero to the police station in a separate vehicle.
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next to item No. 19, the statement reflecting he had had sufficient time to consult with his
attorney regarding the plea and that his attorney had explained everything in the
agreement to him. Defendant signed the plea agreement. Defense counsel signed the
plea agreement reflecting she had “personally read and explained the contents of the”
agreement to defendant.
The court asked defendant if he had reviewed the plea agreement with his lawyer
before initialing the boxes and signing it. Defendant responded he had. The court noted,
“Paragraph 5 that you initialed talks about Constitutional Rights that citizens enjoy that
you are giving up to change your plea[] today. I don’t need to go over those any further,
do I, [defendant]?” Defendant responded the court did not. The court found defendant
understood his rights and intelligently waived them. Defendant entered his plea.
The court referred the matter out for the preparation of a probation officer’s report
prior to sentencing. During the probation interview, defendant admitted using marijuana
and beer. The probation officer recommended that “[s]hould the court decide to impose a
felony grant of probation, drug terms should be added based on admitted use.” The
probation officer’s recommended term No. 16 reads that defendant, “Neither possess nor
consume any alcoholic beverages nor enter places where such beverages are the chief
item of sale[]” and “[s]ubmit to tests at the direction of the probation officer.”
At the sentencing hearing on June 9, 2014, defense counsel specifically objected
“to all the drug terms,” including term No. 16. The court ruled, “the request [regarding]
the drug terms will be denied. I leave that—those types of things up to the sound
discretion of the probation department.” The court granted defendant three years formal
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probation, term No. 16 of which required that defendant, “Neither possess nor consume
any alcoholic beverages nor enter places where such beverages are the chief item of sale,
and submit to tests at the direction of the probation officer.”
DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, but he
did not do so. 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.
(People v. Marlow (2004) 34 Cal. 4th 131, 147 [constitutional validity of plea reviewed
under totality of the circumstances]; People v. Balestra (1999) 76 Cal. App. 4th 57, 68-69
[appellate court must show deference to trial court’s determination of appropriate
conditions of probation such as imposition of alcohol probation term even in case where
alcohol was not directly implicated in crime].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
RICHLI
J.
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