People v. Velarde CA4/1 ( 2014 )

Filed 12/3/14 P. v. Velarde CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065741
Plaintiff and Respondent,
v. (Super. Ct. No. SCD251204)
EDUARDO GUTIERREZ VELARDE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy
R. Walsh, Judge. Affirmed.
Leslie A. Rose, under appointment of the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant Eduardo Gutierrez Velarde was charged in a felony complaint with
violations of Health and Safety Code1 section 11378 (possession for sale of
methamphetamine; count 1), section 11379, subdivision (a) (transportation of
1 All further undesignated statutory references are to the Health and Safety Code.
methamphetamine; count 2), section 11351 (possession for sale of cocaine; count 3), and
section 11352, subdivision (a) (transportation of cocaine; count 4). As to counts 1 and 2,
it was alleged the methamphetamine exceeded 10 kilograms by weight within the
meaning of section 11370.4, subdivisions (b)(2) and (b)(3). On counts 3 and 4 it was
alleged that the cocaine exceeded 1 kilogram by weight, within the meaning of section
11370.4, subdivision (a)(1).
Velarde thereafter pleaded guilty to counts 1 and 3, and admitted the enhancement
as to count 3. The enhancement relating to count 1 was amended to section 11370.4,
subdivision (b)(1), and Velarde admitted that enhancement. In exchange for the guilty
plea, Velarde was sentenced to a total term of six years, consisting of the midterm of
three years on count 3, plus three consecutive years for the enhancement, and the
midterm of two years on count 1, plus three years on the enhancement, for a total of five
years concurrent to the previously ordered six years. The remaining counts and
enhancements were dismissed. As a condition of the plea, Velarde waived his right to
appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) indicating
she is unable to find any arguable issues for reversal on appeal. Counsel requests this
court to review the record for error as required by Wende. We granted Velarde the
opportunity to file a supplemental brief and he has not responded.
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FACTUAL BACKGROUND
In October 2013 Velarde attempted to enter the United States through the Otay
Mesa Port of entry. He was driving a 2004 GMC Yukon. An agent went to the rear of
the vehicle and checked the spare tire underneath the cargo area of the vehicle and it felt
solid. Velarde was then referred to secondary inspection, where a canine alerted to the
spare tire area. The spare tire was removed and the agent found packages containing 5.23
pounds of cocaine and 27.76 pounds of methamphetamine.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief pursuant to
Wende, supra, 25 Cal.3d 436, indicating she is unable to find any arguable issues for
reversal on appeal and asks this court to review the record for error as mandated by
Wende. As required by Anders, supra, 386 U.S. 738, counsel has set forth three possible,
but not arguable issues:
1. Was the waiver of the right to appeal valid?
2. Is Velarde's guilty plea constitutionally valid?
3. Was there a sufficient factual basis for the plea?
We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436,
and Anders, supra, 386 U.S. 738, and have not discovered any reasonably arguable issues
for reversal on appeal. Competent counsel has represented Velarde on this appeal.
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DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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