Filed 4/19/18 P. v. Aboncemunoz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

LUIS ALBERTO ABONCEMUNOZ,

Defendant and Appellant.
H044954
(Santa Clara County
Super. Ct. No. C1634028)
Defendant Luis Alberto Abonce Munoz pleaded no contest to felony unlawful driving or taking of a vehicle without the owner’s consent in exchange for the dismissal of other charges and a one-year jail sentence to be served on the electronic monitoring program with probation terminated on release. His plea agreement included a Cruz waiver. Defendant failed to appear for sentencing. The court suspended imposition of sentence and placed defendant on three years’ formal probation subject to various conditions, including that he serve one year in county jail.
On appeal, defendant’s counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We sent a letter to defendant at his last known address notifying him of his right to submit a written argument on his own behalf on appeal. That notice was returned as undeliverable; defendant has not provided this Court with an updated address.
Based on our independent review of the record, we conclude that there are no arguable issues on appeal. As required by People v. Kelly (2006) 40 Cal.4th 106, 110, we will provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.” We will further include information about aspects of the trial court proceedings that might become relevant in future proceedings. (Ibid.)
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant stole or drove without authorization a work van belonging to the County of Santa Clara, Roads and Airport Department. The vehicle was recovered by law enforcement, but $4,366.94 in County property, including tools, a generator, and an iPhone, were missing. Also missing were personal items belonging to two County employees—Jasiel Malpica’s $260 prescription glasses and Justin Gray’s Bluetooth speaker ($99.99), Bluetooth transmitter ($22.99), and car keys ($525).
In a felony complaint filed on March 25, 2016, the Santa Clara County District Attorney charged defendant with felony unlawful driving or taking of a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a); count 1) and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364; count 2). The complaint alleged that defendant was out of custody on bail at the time he committed the felony (Pen. Code, § 12022.1) and that he had served two prior prison terms (§667.5, subd. (b)).
On November 15, 2016, defendant pleaded no contest to count 1 in exchange for the dismissal of count 2 and the out on bail and prior prison term allegations. Defendant’s plea agreement called for a one-year jail sentence to be served on the electronic monitoring program (EMP), “PTOR” (probation terminated on release). The plea agreement also included a Cruz waiver stating: “I understand if I willfully fail to appear for future court dates, I will lose the benefit of any plea agreement. The sentencing judge could then impose a different or greater punishment up to the maximum possible sentence, and I would not be allowed to withdraw my plea because of that different or greater punishment.” Defendant initialed beside the Cruz waiver on the plea agreement form. In addition, prior to accepting defendant’s plea, Judge Chatman explained to defendant that the Cruz waiver “means . . . you promise . . . to show up at the time of sentencing . . . .” Defendant acknowledged he understood the waiver.
Defendant failed to appear at his March 16, 2017 sentencing hearing. He appeared on June 1, 2017. At that time, the prosecutor explained that, given the Cruz waiver and defendant’s failure to appear for sentencing, “the deal is now gonna be changed from his original PTOR, one year EMP to formal felony probation, one year in county jail.” Also at that hearing, defense counsel agreed that “Arbuckle is waived.”
On June 23, 2017, defendant appeared for sentencing before Judge Duong. The court suspended imposition of sentence and placed defendant on three years’ formal probation subject to various conditions, including that he serve one year in county jail with 241 days of credit. Defendant stipulated to $4,366.94 in restitution to the County of Santa Clara, Roads and Airport Department; $260 to Jasiel Malpica; and $647.98 to Justin Gray, and the court ordered restitution in those amounts. The court imposed a $300 restitution fine plus a 10 percent administration fee (§ 1202.4, subd. (b)) with an additional $300 probation revocation fine, which was suspended pending successful completion of probation (§ 1202.44); a $4 emergency medical air transportation fine (Gov. Code, § 76000.10); a $40 court security fee (§ 1465.8); a $30 criminal conviction assessment fee (Gov. Code, § 70373); a $259.50 criminal justice administration fee to payable to the County (Gov. Code, §§ 29550, 29550.1, 29550.2); and a $110 monthly probation supervision fee (§ 1203.1b). The court dismissed count 2 and ordered the out on bail and prior prison term allegations stricken.
Defendant timely appealed on August 2, 2017. On his notice of appeal, he wrote that the basis for his appeal was that a different judge sentenced him than accepted his plea. In an attached request for certificate of probable cause, he repeated that complaint and noted that the sentencing judge “imposed probation without [him] understanding why.” The superior court denied the request for the certificate of probable cause.
II. DISCUSSION
Having examined the entire record, we conclude that there are no arguable issues on appeal.
III. DISPOSITION
The judgment is affirmed.




_________________________________
ELIA, ACTING P. J.

WE CONCUR:



_______________________________
BAMATTRE-MANOUKIAN, J.



_______________________________
MIHARA, J.












People v. Aboncemunoz
H044954