Filed 8/1/17 P. v. Loyola CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL RICHARD LOYOLA,

Defendant and Appellant.
H043995
(Santa Clara County
Super. Ct. Nos. C1628079, C1628087)

Defendant Daniel Richard Loyola was a passenger in a vehicle that was stopped by sheriff’s deputies. A deputy saw defendant trying to swallow a piece of paper. The deputy ordered defendant to spit the paper out, but he refused. The deputy physically prevented him from swallowing it, and defendant ultimately spit it out. The paper turned out to be a forged check. Defendant was arrested, and a key to a stolen vehicle was found in his pocket. Defendant was on active postrelease community supervision (PRCS) at the time of his arrest.
Defendant was charged by complaint in case No. C1628079 with receiving a stolen vehicle with a prior conviction for vehicle theft (Pen. Code, §§ 496d, 666.5), and it was further alleged that he had suffered a strike prior (§§ 667, subds. (b)-(i), 1170.12) and a prison prior (§ 667.5, subd. (b)). He was charged by complaint in case No. C1628087 with forgery (§ 470, subd. (d)), destroying evidence (§ 135), misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364), and misdemeanor resisting a peace officer (§ 148, subd. (a)(1)). The complaint in case No. C1628087 also alleged that he had suffered a prior strike conviction and served five prison terms for prior felony convictions.
Defendant entered into a plea agreement to resolve both cases. He agreed to plead no contest to the forgery and resisting counts and to an amended count of misdemeanor possession of a stolen vehicle, to admit the strike, and to admit violating his PRCS in exchange for a sentence of no more than 32 months and dismissal of the remaining charges and allegations. He entered his pleas and admission and asked the court to strike the strike.
Defendant, who was 35 years old when he committed these offenses, had started using methamphetamine when he was 14 years old, and he was an addict by age 21. He had tried multiple drug treatment programs, but his efforts had been unsuccessful. Nevertheless, he was eager to try again and had been accepted into a residential treatment program. Defendant’s 15-year criminal history primarily consisted of drug and theft offenses, yet he had also been convicted multiple times of resisting arrest and once, in 2003, of aggravated assault. The 2003 assault occurred when defendant stole a vehicle, was pursued by the victim, and used the stolen vehicle to “ram” the victim’s vehicle. Defendant had a history of noncompliance with PRCS, and he had also repeatedly violated his parole.
Defendant’s trial counsel argued that the strike should be stricken because it was over 10 years old and defendant had not committed any other violent offenses since then. The current offenses were not serious, and defendant’s “main issue . . . is addiction.” The court, noting that defendant “has been given lots of opportunities, and he has failed to take advantage of those opportunities,” refused to strike the strike. It imposed a 32 month, lower-term, doubled sentence for the forgery count, a concurrent jail term for the resisting count, and a jail term that was deemed served for the possession count. The court imposed the mandatory fees and fines and granted defendant 484 days of credit. He timely filed a notice of appeal challenging only the postplea proceedings.
Appointed appellate counsel has filed an opening brief which states the case and the facts but raises no issues. Defendant was notified of his right to submit written argument on his own behalf but has failed to avail himself of the opportunity. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.
The judgment is affirmed.






_______________________________
Mihara, J.



WE CONCUR:






_____________________________
Elia, Acting P. J.






_____________________________
Bamattre-Manoukian, J.