Filed 10/13/15 P. v. Aviles CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063683

v.                                                                       (Super.Ct.Nos. RIF1410734 &
                                                                          SWF1402875)
HIMBLER AVILES,
                                                                         ORDER MODIFYING OPINION
         Defendant and Appellant.                                        [NO CHANGE IN JUDGMENT]




         The opinion filed in this matter on September 30, 2015, is modified as follows:

         The following paragraphs should be inserted above the section titled “I.

PROCEDURAL BACKGROUND.”

                  Defendant and appellant Himbler Aviles simultaneously pled guilty

         in two separate cases to impersonating a police officer (Pen. Code, § 538d,

         subd. (c), count 1, case No. RIF1410734), possession of methamphetamine

         (Health & Saf. Code, § 11377, subd. (a), count 1, case No. SWF1402875)




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      and trespass (Pen. Code, § 603, count 2, case No. SWF1402875). Pursuant

      to defendant’s plea agreement, the court sentenced defendant in the former

      case to nine days of incarceration with credit for time served and, in the

      latter case, to 16 days of incarceration with credit for time served. The

      court additionally imposed various fines and fees.

             Defendant filed separate notices of appeal from each of the two

      cases the day before he entered his pleas. Thereafter, this court appointed

      counsel to represent defendant. Counsel has filed a brief under the

      authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v.

      California (1967) 386 U.S. 738, setting forth a statement of the case and

      identifying two potentially arguable issues: (1) whether defendant was

      advised of his constitutional rights, the consequences of pleading guilty,

      and whether he waived those rights before entering his pleas; and (2)

      whether defense counsel committed some unspecified act or acts of

      prejudicial ineffective assistance of counsel. We affirm.

      Except for this modification, the opinion remains unchanged. This modification

does not affect a change in the judgment.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


      1  Defendant also simultaneously pled guilty to four counts of domestic battery
(Pen. Code, § 243, subd. (e)(1), counts 1-4) in another case, case No. SWM1309498, for
which he was sentenced to 36 months’ probation with a term requiring 90 days
incarceration. However, he has not filed an appeal in that case.

                                            2
                             KING
                                    J.


We concur:

HOLLENHORST
          Acting P. J.

McKINSTER
                    J.




                         3
Filed 9/30/15 (unmodified version)

                      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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063683

v.                                                                       (Super.Ct.Nos. RIF1410734 &
                                                                          SWF1402875)
HIMBLER AVILES,
                                                                         OPINION
         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Edward D. Webster,

Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed.

         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
                           I. PROCEDURAL BACKGROUND

       On August 14, 2014, the People charged defendant by felony complaint in case

No. RIF1410734 with possession of methamphetamine (count 1; Health & Saf. Code,

§ 11377, subd. (a)), felony impersonating a police officer (count 2; Pen. Code, § 146a,

subd. (b)(3)), and two counts of misdemeanor impersonating a police officer (counts 3 &

4; Pen. Code, § 538d, subd. (c)). On September 29, 2014, the People charged defendant

by felony complaint in case No. SWF1402875 with possession of methamphetamine

(count 1; Health & Saf. Code, § 11377, subd. (a)), being under the influence of a

controlled substance (count 2; Health & Saf. Code, § 11550, subd. (a)), and trespass for

vandalism (count 3; Pen. Code, § 603).

       On March 27, 2015, defendant signed and initialed plea agreements in both cases.

Defendant initialed all six provisions of each plea agreement advising him of his

constitutional rights to a speedy and public trial by a judge or jury, to face and cross-

examine witnesses against him, to compel witnesses to attend trial and present evidence

in his defense, against self-incrimination, to testify on his behalf, to be represented by a

lawyer at all proceedings paid for by the state if he could not afford one, and to a court

reporter at all proceedings.

       On the plea agreement in case No. RIF1410734, defendant initialed two applicable

provisions informing him of the consequences of his plea. On the plea agreement in case

No. SWF1402875, defendant initialed five applicable provisions informing him of the

consequences of his plea. Defendant signed both agreements indicating he read and


                                              2
understood the agreements in their entirety. Defense counsel signed the agreements

reflecting his belief that defendant understood his constitutional rights and the

consequences of the pleas.

       At defendant’s plea hearing, the court advised defendant he had all the

constitutional rights enumerated in his plea agreements, the provisions of which

defendant had initialed.2 The court asked if defendant signed the forms understanding

everything in them. Defendant answered that he had signed the forms and understood the

contents therein. The court asked if defendant understood he was giving up his right to a

trial, to confront and produce witnesses, and his privilege against self-incrimination.

Defendant responded he understood. The court asked defendant if he understood the

consequences of his pleas. Defendant answered that he did.

       The court noted that defense counsel “worked a miracle for you, he and the

legislators, and the citizens passing Prop[osition] 47. Because I would have never

guessed that you would be where you are now before October of 2014. So things have

worked out well for you.” Defendant entered his pleas as noted, ante.




       2  The minute orders for the hearing reflect the court advised defendant of his
rights to a speedy and public trial by judge or jury, to confront and cross-examine
witnesses, to present evidence, and his privilege against self-incrimination. They further
indicate defendant waived those rights. The minute orders further read that the “Court
finds based on inquiry and examination of def[endant], that def[endant] has the ability to
understand and does understand his/her constitutional rights.”

                                              3
                                    II. DISCUSSION

   We offered defendant an opportunity to file a personal supplemental brief, which he

has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error and find no arguable issues.

                                   III. DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                              KING
                                                                                         J.


We concur:

HOLLENHORST
          Acting P. J.

McKINSTER
                          J.




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