Filed 8/28/17 P. v. Venegas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
TOMAS VENEGAS, JR.,
Defendant and Appellant.
| H044416 (San Benito County Super. Ct. No. CR-11-01912) |
After defendant Tomas Venegas Jr. admitted to violating his probation in San Benito County superior court case No. CR-11-01912, the trial court imposed the original sentence of 14 years in prison, execution of which had been suspended pending his successful completion of probation.
We appointed counsel to represent Venegas in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Venegas of his right to submit written argument in his own behalf within 30 days. That period has elapsed, and we have received no written argument from Venegas.
I. Factual and Procedural Background
Venegas was charged by information filed April 25, 2012, with one felony count of attempted murder (Pen. Code, §§ 187, subd. (a), 664),[1] one felony count of assault with a firearm (§ 245, subd. (a)(2)), and one misdemeanor count of resisting a peace officer (§ 148, subd. (a)(1)). The information further alleged that Venegas personally and intentionally discharged a firearm and personally used a firearm in connection with the attempted murder (§ 12022.53, subds. (b), (c)), and that he personally used a firearm in connection with the assault (§ 12022.5, subd. (a)).[2]
On May 31, 2012, Venegas pleaded no contest to the charge of assault with a firearm and admitted the allegation that he personally used a firearm in committing that offense. The court indicated that it would impose a sentence of between five and 14 years, suspend execution of the sentence and place Venegas on probation for a period of three to five years. The remaining charges were to be dismissed at sentencing.
At sentencing, the trial court adopted the recommendations set forth in the probation report and imposed a sentence of 14 years, consisting of the upper term of four years for the charge of assault with a firearm plus the upper term of 10 years for the personal use of a firearm enhancement.
Execution of the sentence was suspended and the trial court placed Venegas on formal probation for five years. The remaining counts were dismissed.
On September 6, 2012, the probation department reported that Venegas violated his probation by admitting to using a controlled substance. At the September 13, 2012 revocation hearing, after Venegas admitted violating probation, the trial court revoked and reinstated probation and ordered Venegas to serve 45 days in jail.[3]
On September 24, 2012, the probation department reported that Venegas had again violated the terms of his probation by suffering an “[a]rrest and/or conviction on a new charge.” At the contested hearing, Venegas admitted the violation. The trial court reinstated probation, ordering Venegas to serve 57 days in jail.
On February 22, 2013, the probation department reported Venegas had violated probation by failing to attend “NA” meetings as ordered and by testing positive for marijuana. The probation department filed an amended notice of violation on March 26, 2013, adding an allegation that Venegas violated probation due to his arrest for domestic abuse (§ 243, subd. (e)(1)). After admitting the violation, the trial court again reinstated and modified probation, ordering Venegas to complete either the “Delancy [sic] St[reet] or Teen Challenge” programs in exchange for Venegas waiving credits for time spent in the program.
On February 10, 2014, the probation department filed a notice of violation, reporting that Venegas had failed to complete the Delancey Street program after being discharged for failing to abide by the program’s rules. Venegas also violated probation by failing to report to the probation department following his termination from the Delancey Street program. On February 13, 2014, the trial court revoked probation and, on February 18, 2014, issued a bench warrant for Venegas’ arrest.
Venegas appeared in court with counsel on September 20, 2016, at which time a violation of probation hearing was set. At the October 20, 2016 violation hearing, Venegas admitted violating probation. The trial court found Venegas not suitable for probation and executed the previously imposed 14-year sentence, with total credits of 816 days (408 custody credits plus 408 good time/work time credits). The trial court imposed a $240 restitution fine (§ 1202.4, subd. (b)), a $240 probation revocation restitution fine (§ 1202.44), a $40 court operation assessment fee (§ 1465.8), and a $30 criminal conviction assessment fee (Gov. Code, § 70373).
Venegas’ initial appeal was rejected as untimely, but by order dated March 21, 2017, this court granted his motion for relief from default conditional on him filing a notice of appeal within 10 days. Having complied, Venegas’ appeal is timely.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.
II. Disposition
The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Grover, J.
People v. Venegas
H044416
[1] Unspecified statutory references are to the Penal Code.
[2] As the instant appeal challenges the sentence imposed after Venegas admitted violating probation by failing to complete a court-ordered drug program and absconding from probation, we need not recite the facts underlying his original conviction or probation violation.
[3] The September 13, 2012 minute order reflects that Venegas’ jail sentence could be served on “work furlough” with “electronic monitoring.”
