People v. Duenas CA2/2 ( 2014 )

Filed 6/25/14 P. v. Duenas 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B253402
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA101103)
v.
JOSE HILARIO DUENAS,
Defendant and Appellant.
THE COURT:*
Appellant Jose Hilario Duenas (Duenas) appeals from the judgment of conviction
following a plea of no contest.
On February 23, 2013, Pomona Police Officer Bert Sanchez was driving a marked
patrol car. While at a traffic light, he was flagged down by a man,1 who told the officer
that there was a man with a gun standing outside the Fox Theater. The man pointed in
the direction of a crowd of people and said that the man with the gun was wearing a green
shirt. Duenas was the only person wearing a green shirt.
* BOREN, P. J., ASHMANN-GERST, J., CHAVEZ, J.
1 The man would not provide his name. He did, however, remain at the scene
through Duenas’s arrest.
Duenas and Officer Sanchez appeared to lock eyes. Duenas then zigzagged
through the crowd and into the bar at a rapid pace. Officer Sanchez followed Duenas into
the bar. Inside the bar, Officer Sanchez tackled Duenas from behind, which caused the
gun to fall out from Duenas’s waistband.2
An information charged Duenas with possession of a firearm by a felon in
violation of Penal Code section 29800, subdivision (a)(1). It was further alleged that
Duenas suffered a prior conviction for a serious or violent felony, within the meaning of
Penal Code sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a)
through (d), in 2005.
Defense counsel filed a motion to suppress the fruits of the warrantless seizure of
Duenas. Specifically, he argued that the police did not sufficiently corroborate the
anonymous tip that Duenas had a gun before tackling him and dislodging the firearm that
Duenas had in his waistband. The trial court denied the motion. In so doing, it found
that the aggressive tackle constituted more than a mere detention. It then found that there
was probable cause to arrest Duenas at the time of the tackle.
Duenas waived his constitutional rights, pled no contest, and admitted the strike
allegation in return for an agreed upon maximum sentence of four years. Defense
counsel filed a Romero3 motion, asking the trial court to dismiss the strike allegation; that
motion was denied. Duenas was sentenced, awarded presentence credits, and ordered to
pay various fees and fines.
On December 17, 2013, Duenas filed a notice of appeal from the judgment and
trial court’s denial of his motion to suppress.
Counsel was appointed to represent Duenas in connection with this appeal. After
examination of the record, counsel filed an “Opening Brief” in which no arguable issues
2 Officer Sanchez admitted that he did not see the gun before tackling Duenas.
3 People v. Superior Court (Romero) (1996) 13 Cal. 4th 497.
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were raised.4 On March 3, 2014, and April 11, 2014, we advised Duenas that he had 30
days within which to personally submit any contentions or issues for us to consider. No
response has been received to date.
We have examined the entire record and are satisfied that Duenas’s appellate
counsel has fully complied with his responsibilities and that no arguable issues exist.
(People v. Wende (1979) 25 Cal. 3d 436, 441 (Wende).) We see no indication that the
trial court erred in denying Duenas’s motion to suppress. Accordingly, we conclude that
Duenas has, by virtue of counsel’s compliance with the Wende procedure and our review
of the record, received adequate and effective appellate review of the judgment entered
against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly
(2006) 40 Cal. 4th 106, 123–124.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
4 In a footnote, counsel indicated that he disagrees with the trial court’s conclusion
that there was probable cause to arrest. But counsel offers no legal argument in support
of this one sentence assertion.
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