P. v. Ruiz

Filed 10/19/07 P. v. Ruiz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez, Judge.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Respondent.

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INTRODUCTION

Appellant, Ray Ruiz, was charged in an information filed August 28, 2006, with receiving a stolen motor vehicle (Pen. Code, 496d, subd. (a), count one),^[1]two counts of receiving stolen property ( 496, subd. (a), counts two & three), and felony vandalism ( 594, subd. (a) count four). Ruiz entered into a plea agreement wherein he would admit count one. In exchange for his plea, the remaining counts would be dismissed. Ruiz would receive consideration for probation and would receive a prison term of no more than three years. Ruiz executed a felony advisement, waiver of rights, and plea form that set forth the consequences of his plea.

On January 11, 2007, the court advised Ruiz of his constitutional rights pursuant to Boykin/Tahl.^[2] Ruiz expressly waived each right in open court. The court established a factual basis for the plea based on the stipulations of counsel and the police reports.^[3] Ruiz pled no contest to count one. On February 9, 2007, the trial court suspended imposition of judgment and placed Ruiz on probation for two years upon various terms and conditions, including that he served 365 days in jail.^[4]

Ruizs appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Ruiz was advised he could file his own brief with this court. By letter on June 22, 2007, we invited Ruiz to submit additional briefing. To date he has not done so.

FACTS

On March 27, 2006, an officer with the California Highway Patrol investigated reports that Ruiz had stolen property at his residence.^[5] The officer found a stolen motorcycle, stolen picking ladders and a trailer, and a stolen dual unit portable toilet. The original lettering on the portable toilet, indicating the owner, had been freshly painted over.

The officer read Ruiz his Miranda^[6]rights, which Ruiz waived. Ruiz explained the Border Brothers paid him $50 to keep the trailer and ladders on his property. Ruiz admitted knowing that the portable toilets, which were on a trailer, were stolen. Ruiz also admitted knowing that the motorcycle was stolen. He explained that the Border Brothers gave him the motorcycle so they could keep property at his residence. Ruiz had painted the gas tank primer gray.

After his arrest, Ruiz began kicking out the windows of the patrol car into which he was placed, causing damage of just over $1,000.

DISCUSSION

We initially note that Ruiz failed to obtain a certificate of probable cause from the trial courts initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) We note, however, that there are no obvious or prejudicial errors in Ruizs change of plea hearing. Ruiz was fully advised of the consequences of his plea and his constitutional rights in the waiver of rights and change of plea form. He was further advised of and waived his constitutional rights by the trial court. The police reports and the preliminary hearing transcript established a prima facie factual basis for the plea. Ruiz received probation and the remaining allegations in the information were dismissed.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Levy, J., Dawson, J.

^[1] All further statutory references are to the Penal Code, unless noted otherwise.

^[2]Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

^[3] A factual basis for the plea could also have been established from the preliminary hearing transcript.

^[4] Ruiz filed a letter with the probation department in which he asserted he did not know the items found on his property were stolen. Ruiz stated that men he recently met drove up to his home and asked to store ladders on his property. When investigating officers later arrived, they told Ruiz the ladders were stolen. They asked Ruiz if he knew the ladders were stolen. Ruiz answered, no. Ruiz stated he pled no contest because his lawyer told him he would not win. After describing his personal history, Ruiz asked the judge to place him on probation. Ruizs trial counsel stated she considered filing a motion for Ruiz to withdraw his plea.

We note that in his letter to the probation department, Ruiz denied knowing that ladders found on his property were stolen. However, Ruiz failed to deny he knew that the vehicle found on his property was stolen. Ruiz pled guilty to receiving a stolen vehicle, not to the other counts. The record did not set forth a factual or legal basis for Ruiz to withdraw his guilty plea.

A guilty plea is, for most purposes, the legal equivalent of a jurys guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.) A plea of nolo contendere is legally equivalent to a guilty plea and also constitutes an admission of every element of the offense pled. (People v. Warburton (1970) 7 Cal.App.3d 815, 820-821.)

^[5] The facts are derived from the preliminary hearing transcript.

^[6]Mirandav. Arizona (1966) 384 U.S. 436.