P. v. Infante

Filed 2/13/07  P. v. Infante CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I.  INTRODUCTION

            After entering into a plea agreement, defendant Jose Antonio Infante pleaded no contest to two felonies, resisting an executive officer by means of threats and violence (Pen. Code, § 69)[1] and carrying a concealed dirk or dagger (§  12020, subd. (a)(4)). He also admitted a prior prison term allegation (§  667.5, subd. (b)).  The trial court sentenced defendant to the agreed-upon aggregate term of two years, four months.

            On appeal, defendant contends that (1) the People's failure to file an information deprived the trial court of jurisdiction; and (2) the $400 restitution fine must be reduced to the statutory minimum of $200 because the restitution fine was not specified in the plea agreement.  For reasons that we will explain, we find no merit in defendant's contentions and therefore we will affirm the judgment.

            We ordered defendant's related petition for writ of habeas corpus, which asserts a claim of ineffective assistance of counsel, to be considered with this appeal.  We have disposed of the petition by separate order filed this day.  (See Cal. Rules of Court, rule 8.264(b).)

II.  FACTUAL AND PROCEDURAL BACKGROUND

            A.  The Complaint

            The complaint filed January 13, 2006, charged defendant with two felonies, resisting an executive officer by means of threats and violence (§  69; count 1) and carrying a concealed dirk or dagger (§ 12020, subd. (a)(4); count 2).[2]  The complaint also included a special allegation that defendant had served three prior prison terms. 

            B.  The Preliminary Hearing

            The witnesses at the preliminary hearing held January 30, 2006, included Sergeant Juan Carlos Reynoso and Officer Heather Dorman of the Hollister Police Department.

            Sergeant Reynoso testified regarding his contact with defendant on January  11, 2006.  At that time, Sergeant Reynoso was wearing his police uniform and badge and driving a police vehicle.  Immediately before contacting defendant, Sergeant Reynoso was advised over his radio that a â€