People v. Lopez CA2/1

Filed 5/31/23 P. v. Lopez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B323327
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA124509)
v.
MARIA DELALUS LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Rob B. Villeza, Judge. Affirmed.
Lise M. Breakey, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
______________________
INTRODUCTION
Defendant Maria Delalus Lopez pleaded no contest to
second degree robbery (Pen. Code,1 § 211) pursuant to a plea
agreement, after which the court suspended imposition of
sentence and placed Lopez on formal felony probation for a period
of five years. Approximately one and a half years into her
probation term, Lopez was arrested for possessing a stun gun,
pepper spray and methamphetamines, all in violation of her
terms of probation. At a probation violation hearing, the court
found Lopez had possessed a stun gun and pepper spray, revoked
her probation, and sentenced her to two years in prison, the low
term for second degree robbery.
Lopez appealed. Her appellate counsel filed a brief
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende),
identifying no issues on appeal and requesting that we
independently review the record to determine whether there are
any arguable issues. Lopez was notified that she could submit a
letter or brief stating any grounds for an appeal, or contentions or
arguments that she wishes this court to consider. Lopez did not
submit any letter or brief.
We have reviewed the record and found no arguable issues,
and we therefore affirm.
BACKGROUND
In an amended information filed on June 30, 2020, the
People charged Lopez with second degree robbery. (§ 211; see
§ 212.5 [degrees of robbery].) A conviction of second degree
1 All further statutory references are to the Penal Code
unless otherwise noted.
2
robbery carries a prison term of two, three, or five years. (§ 213.)
The People alleged that the offense was a “serious felony” or a
“violent felony” mandating that prison custody time for the
offense be served in state prison. (§ 1170, subd. (h)(3).)
On November 2, 2020, Lopez waived her trial rights and
pleaded no contest to the charge, agreeing to be placed on formal
probation for five years. The parties stipulated to a factual basis
for the plea and the court accepted Lopez’s plea and waivers on
the record, finding them to have been knowingly, intelligently,
and voluntarily made. That same day, the court suspended the
imposition of sentence and placed Lopez on formal felony
probation for five years. The court also ordered Lopez to make
full restitution (with the amount, if any, to be determined at a
later hearing) and to provide a DNA sample and print
impressions (§ 296). The court imposed a restitution fine in the
minimum amount (§ 1202.4, subd. (b)(1)), a court operations
assessment (§ 1465.8, subd. (a)(1)), and a court facilities
assessment (Gov. Code, § 70373, subd. (a)(1)), and imposed, but
stayed, a probation revocation fine (§ 1202.44). Among the
conditions of probation were that Lopez would “not own, use or
possess any dangerous or deadly weapons, including any
firearms, knives or other concealable weapons,” would “submit
[her] person and property to search and seizure at any time of the
day or night, by any probation officer or other peace officer, with
or without a warrant, probable cause or reasonable suspicion,”
and would “obey all laws and orders of the court.”
On June 23, 2022, during a probation search involving
another individual at a home in Rosemead, officers encountered
Lopez in the home and found methamphetamine in a makeup
case in a bedroom, and a stun gun and pepper spray in Lopez’s
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car, which was parked in the driveway. Lopez was arrested for
being a felon in possession of a tear gas weapon (§ 22810, subd.
(a)), being a felon in possession of a stun gun (§ 22610, subd. (a)),
and possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)).
On June 28, 2022, the court set a probation revocation
hearing based on a report from the probation department
regarding Lopez’s arrest. (See § 1203.2, subd. (a)(1).) On
August 8, 2022, the court held the probation violation hearing.
Sheriff’s Deputy Francisco Arredondo and Deputy Probation
Officer Liliana Caudillo testified for the People; both had
participated in the probation search on June 23, 2022, which led
to Lopez’s arrest. Deputy Arredondo testified as follows: The
target of the search was another probationer, but Lopez was in
the house when the officers arrived. Deputy Arredondo
confirmed through Officer Caudillo that Lopez was on probation.
Lopez told Deputy Arredondo that the car parked in the driveway
was hers and the keys were inside the house. She also told
Deputy Arredondo that she was living in her car and had arrived
at the house that morning. Deputy Arredondo was informed that
Lopez’s mother was living in a room in the southeast corner of
the house that had an air mattress in it. Deputy Arredondo
directed another sheriff’s deputy to search the room and that
deputy found methamphetamine inside a makeup container.
Deputy Arredondo found the keys to Lopez’s car in the same
room; the keys were in an open black purse, in plain view, a
“couple of feet away” from the methamphetamine. A third
sheriff’s deputy searched Lopez’s car and found a stun gun and
pepper spray; the deputy notified Deputy Arredondo, who went
and observed the stun gun and pepper spray in the car.
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Deputy Arredondo spoke with Lopez’s sister, Sylvia,2 who
was also at the house at the time of the search. Sylvia told
Deputy Arredondo that she did not want to get her sister in
trouble; her sister was doing good, and she did not want her
sister to go down for the methamphetamine; and she wanted to
take the charges. According to Deputy Arredondo, Sylvia did not
say that the methamphetamine belonged to her and “just said
she didn’t want her sister to get in trouble.”
At the revocation hearing, Sylvia testified for Lopez. She
stated that she lived at the house; she rented one of the two
rooms and the owner of the house lived in the other room; her
mother had just moved in and was staying in Sylvia’s room. On
the morning of the search, Lopez arrived at the house at around
6:00 a.m. Sylvia then borrowed Lopez’s car to get Sylvia’s
property from the motel where Sylvia had been staying with her
husband. Sylvia had her purse and a taser gun in the car. Sylvia
stated that “the taser gun I had was . . . always in my purse” and
was part of “stuff that I was moving to my house.” She later
stated regarding the taser, “I brought a lot of my belongings. So I
had a few purses, and it was in one of my purses.” Sylvia also
testified that she carried mace spray with her, stating, “I had it
on my mom’s car keys. But I took it off to spray with the mace
spray. I don’t know if I left it in my sister’s car or where it’s at.
But I had it with me.” Sylvia indicated that she had the stun gun
and tear gas to protect herself because she had been kidnapped
2 Lopez’s sister Sylvia also has the last name Lopez. For
the sake of clarity, we will refer to Sylvia by her first name, so as
not to confuse her with defendant Lopez. No disrespect is
intended.
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by her husband, who had just been released from custody.
Lopez’s counsel introduced into evidence a docket of a criminal
case which, among other things, showed that the male defendant
was charged with kidnapping (§ 207, subd. (a)) and had been
served with a protective order prohibiting him from coming
within 100 yards of “Silvia L.” Sylvia stated that she left a
makeup box in the bedroom where she was sleeping with her
mother. Sylvia had drugs on her that day; she did not recall
whether she left them in her makeup bag in her room, or if she
took them with her in Lopez’s car. Sylvia’s makeup box is pink.
When she returned to the house from the motel, Sylvia left her
purse and all of her belongings in the car and put the car keys on
a table in the living room. She later stated she was “not 100
percent sure” where she put the keys. The police arrived very
soon after Sylvia got back from the motel.
At the conclusion of testimony, defense counsel stipulated
that Deputy Arredondo wrote in his report that the
methamphetamine was found in an orange makeup container
and the stun gun and pepper spray were found together in the
center console of Lopez’s car. The People also submitted a
certified rap sheet for Lopez.
The court found by a preponderance of the evidence that
Lopez possessed the stun gun and pepper spray, but did not find
that Lopez had possessed the methamphetamine. (See People v.
Rodriguez (1990) 51 Cal.3d 437, 439, 443 [the preponderance of
the evidence standard applies in a probation violation
determination and the trial court has “very broad discretion in
determining whether a probationer has violated probation”].)
The court found Sylvia’s testimony that the stun gun and pepper
spray were hers was not credible. The court revoked Lopez’s
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probation and sentenced her to the low term of two years in state
prison for the second degree robbery. (See § 1203.2, subd. (c)
[“Upon any revocation and termination of probation the court
may, if the sentence has been suspended, pronounce judgment for
any time within the longest period for which the person might
have been sentenced”].) The court decided against placing Lopez
back on probation because that option was “[not] suitable under
the circumstances given [Lopez’s] criminal history”; the court
noted that Lopez had an “extensive criminal history since 2006
almost on a yearly basis” and stated, “what is concerning to the
court is the second[ ]degree robbery conviction that she sustained
in 2020 reflects that it is an escalating seriousness in terms of
her criminal history.” Lopez was given 92 days’ credit for time
spent in custody (based on 46 days spent in custody plus 46 days
for local conduct credit).3
Lopez filed a timely notice of appeal on August 9, 2022.
DISCUSSION
The sentence imposed by the trial court after it revoked her
probation is a “final judgment of conviction” that is appealable
under section 1237, subdivision (a).4
3This credit was for time Lopez had spent in custody after
her arrest on June 23, 2022. Lopez had also spent time in
custody before pleading no contest on November 2, 2020, but she
waived credit for that time as part of her plea agreement.
4 “When the trial court in a criminal case decides at time of
sentencing to grant the defendant probation, the court may either
suspend imposition of sentence or actually impose sentence but
suspend its execution. (See Pen. Code, § 1203.1, subd. (a).)”
(People v. Howard (1997) 16 Cal.4th 1081, 1084, fn. omitted.) In
November 2020, when Lopez initially pled no contest to the
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Lopez did not file the written statement required by section
1237.5 for issuance of a certificate of probable cause. A defendant
who appeals following a plea of no contest or guilty without a
certificate of probable cause may only challenge the denial of a
motion to suppress evidence or raise grounds arising after the
entry of the plea that do not affect the plea’s validity. (§ 1237.5;
Cal. Rules of Court, rule 8.304(b); People v. Johnson (2009) 47
Cal.4th 668, 676-677 & fn. 3; see Johnson, at p. 678 [“a certificate
of probable cause is required if the challenge goes to an aspect of
the sentence to which the defendant agreed as an integral part of
a plea agreement”].) Lopez did not make any motion to suppress
evidence in this case. Thus, Lopez’s appeal is restricted to any
issues arising after her guilty plea that do not affect the validity
of the plea. As applicable here, that essentially means only what
occurred in connection with the probation revocation hearing.
We appointed counsel to represent Lopez in this appeal.
After reviewing the record, counsel filed an opening brief
identifying no appellate issues and requesting that this court
independently review the record pursuant to Wende, supra, 25
Cal.3d 436. This court and counsel both advised Lopez that she
could file a supplemental letter or brief stating any grounds for
an appeal, or contentions or arguments that she wishes this court
to consider. Lopez did not submit any letter or brief.
We have examined the entire record and are satisfied that
no arguable issues exist, and Lopez’s attorney has complied with
robbery charge, the court suspended imposition of sentence.
“When the trial court suspends imposition of sentence, no
judgment is then pending against the probationer, who is subject
only to the terms and conditions of the probation.” (Id. at
p. 1087.)
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the responsibilities of counsel. (People v. Kelly (2006) 40 Cal.4th
106, 125-126; Wende, supra, 25 Cal.3d at pp. 441-442.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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