People v. Mendez-Munoz CA1/4

Filed 6/4/14 P. v. Mendez-Munoz CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A140031
v.
JESUS ALBERTO MENDEZ-MUNOZ, (Marin County
Super. Ct. No. SC181931A)
Defendant and Appellant.
Appellant Jesus Alberto Mendez-Munoz appeals from his conviction and resulting
sentence following his guilty plea to one felony count of carrying a concealed firearm in
a vehicle while being an active member of a criminal street gang (Pen. Code, § 25400,
subd. (a)(3)1).
Appellant’s counsel has filed an opening brief in which no issues are raised, and
asks this court for an independent review of the record as required by People v. Wende
(1979) 25 Cal. 3d 436. Counsel has declared that appellant has been notified that no
issues were being raised by counsel on appeal, and that an independent review under
Wende instead was being requested. Appellant was also advised of his right personally to
file a supplemental brief raising any issues he chooses to bring to this court’s attention.
No supplemental brief has been filed by appellant personally.
We note that appellant has not obtained a certificate of probable cause, which is
required by section 1237.5 when a defendant seeks to appeal from a judgment entered
following a guilty or no contest plea. A certificate is not required when the notice of
1
All further statutory references are to the Penal Code.
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appeal states, as appellant’s does here, that the appeal is based upon the sentence or other
matters occurring after the plea that do not affect the validity of the plea. Accordingly,
we have reviewed the whole record pursuant to People v. Wende, supra, 25 Cal. 3d 436
and People v. Kelly (2006) 40 Cal. 4th 106, focusing upon grounds for appeal arising after
entry of the plea (except perhaps appellant’s motion to reduce his conviction to a
misdemeanor, which we have also examined). Having done so, we conclude that there is
no arguable issue on appeal.
Procedural and Material Factual Background of Case
A four-count felony criminal complaint was filed by the Marin County District
Attorney’s Office on September 5, 2012, charging appellant with one count each of
actively participating in a criminal street gang (§ 186.22, subd. (a)), carrying a concealed
firearm in a vehicle (§ 25400, subd. (a)(3)), carrying a loaded firearm in a vehicle while
an active member of a criminal street gang (§ 25400, subd. (c)(3)), and carrying a loaded
firearm without being the registered owner (§ 25850, subd. (c)(6)).
Several days later, appellant filed a motion to suppress evidence, pursuant to
section 1538.5. However, before the motion was set for a hearing, on September 27,
2012, appellant entered a plea of guilty to count two, carrying a concealed firearm in a
vehicle (§ 25400, subd. (a)(3)). In doing so, appellant voluntarily and knowingly waived
his constitutional protections and rights with regard to the charge, including a recognition
that he faced a maximum of three years in state prison in connection with the plea. In
return, the prosecutor, with Harvey waivers,2 dismissed all other charges.
At sentencing on October 25, 2012, imposition of sentence was suspended, and
appellant was placed on formal probation for three years, with conditions imposed as
recorded in the record.
A petition to revoke probation was filed three months later after it was alleged that
appellant was found in a vehicle in close proximity to a firearm by San Rafael Police. At
a probation hearing on April 23, 2013,3 appellant admitted the probation violation, but
2
People v. Harvey (1979) 25 Cal. 3d 754.
3
All further dates are in the calendar year 2013.
2
despite the violation, appellant’s probation was reinstated by the trial court with further
conditions imposed, including that he serve six months in county jail.
The following month, another petition was filed by the district attorney alleging
that appellant had violated the terms of his probation by being found in possession of
marijuana. Appellant admitted the violation at a probation revocation hearing on June 6,
and probation was reinstated with further conditions imposed, including that appellant
serve 20 hours of community service.
Two additional petitions alleging probation violations were filed on June 24 and
August 12, respectively. In both instances, appellant admitted the violations, and
probation was extended and continued with additional conditions imposed.
On September 6, appellant filed a motion to declare his original conviction on
count two to be a misdemeanor “by operation of law.” The motion was opposed by the
prosecutor. The motion was thereafter denied by the court. At the hearing on the motion,
the court allowed an opportunity to appellant to withdraw his original felony plea, which
was declined.
Conclusions Based Upon Independent Record Review
Upon our independent review of the record we conclude there are no meritorious
issues to be argued, or that require further briefing on appeal.
We also discern no error in the plea disposition, or during the numerous
proceedings following that plea and conviction. The fines, penalties, and conditions of
probation imposed were supported by the law and facts. We also discern no error in the
court’s ruling on appellant’s motion to reduce his conviction to a misdemeanor. At all
times appellant was represented by counsel.
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DISPOSITION
The judgment is affirmed.
_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
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