Filed 1/15/16 P. v. Valenzuela 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          H042138
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. F1348157)

         v.

RICHARD DAVID VALENZUELA,

         Defendant and Appellant.



         Defendant Richard David Valenzuela pleaded no contest to one count of
possession of metal knuckles, a felony (Pen. Code, § 21810). 1 The court initially
suspended imposition of sentence and granted three years probation on the condition
defendant serve 30 days in county jail. But after defendant was convicted of second
degree burglary in another case, and after he admitted other probation violations, the
court modified defendant’s probation to include, among other things, an increase in his
jail term to nine months.
         We appointed counsel to represent defendant in this court. Appointed counsel
filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), which
stated the case and the facts, but raised no specific issues on appeal. We notified
defendant of his right to submit written argument on his own behalf within 30 days. The

         1
             Unless otherwise stated, further statutory references are to the Penal Code.
30 days have elapsed, and we have received no written argument from defendant.2 We
will conclude there is no arguable issue on appeal and we will affirm the judgment.

                                          FACTS

       At approximately 2:15 p.m. on September 2, 2013, a Santa Clara County Sherriff’s
deputy saw defendant walking on the sidewalk near the intersection of Monterey Road
and Luchessa Avenue in Gilroy, California. The deputy asked if he could speak with
defendant and defendant agreed. While talking with defendant, the deputy noticed metal
knuckles sticking out of defendant’s left pocket. The deputy seized the metal knuckles
and placed defendant under arrest.

                                 PROCEDURAL HISTORY

       In September 2013, the district attorney charged defendant with one count of
possession of metal knuckles, a felony (§ 21810).
       In October 2013, the parties entered into a negotiated disposition. Pursuant to
their agreement, defendant pleaded “no contest” to possession of metal knuckles
(§ 21810). The terms of the agreement included “no state prison” and 30 days in county
jail “top/bottom.”



       2
         Our letter was returned to the court with the hand-written notation “not @ this
address” and a post office label that stated: “Return to sender[;] Attempted – Not known;
unable to forward.” We subsequently asked appellate counsel to report on his efforts to
contact defendant. Counsel reported: “I have been unable to reach him. I obtained his
last known address and telephone numbers from the public defender who represented
him. The letter I sent to that address was returned as undeliverable. One of the telephone
numbers was out of service. The person who answered the other telephone number said
he had not spoken to [defendant] for about two years and believed he was homeless. I
conducted online searches of the Santa Clara County jail and CDCR [(California
Department of Corrections and Rehabilitation)]. [Defendant] was not in jail in Santa
Clara [County] or imprisoned in California.”

                                            2
       In April 2014, the court suspended imposition of sentence and granted three years
formal probation. The conditions of defendant’s probation included 30 days in county
jail consecutive to time imposed in any other case, with credit for nine days served. The
court imposed fines and fees, including: (1) a restitution fine of $308 (§ 1202.4); (2) a
probation revocation restitution fine of $280 (§ 1202.44); (3) a court security fee of $40
(§ 1465.8); (4) a criminal conviction assessment of $30 (Gov. Code, § 70373); (5) a
criminal justice administration fee of $259.50 (Gov. Code, §§ 29550, 29550.1, 29550.2);
and (6) a probation supervision fee of $110 per month (§ 1203.1b).
       On June 29, 2014, at 1:19 a.m., Gilroy Police officers responded to a report of a
man on the roof of a Sports Authority store. When police climbed onto the roof of that
store, the officers saw defendant and a woman standing on the roof of a nearby store.
The officers apprehended defendant and the woman as they attempted to run away. The
officers recovered burglary tools, two flashlights, two-way radios, and a set of
screwdrivers. The woman had two baggies of methamphetamine in her purse.
       Defendant was subsequently charged in a separate case with one count of
attempted second degree burglary (§§ 664, 459, 460, subd. (b); Santa Clara County
Superior Court case No. F1451701). Defendant was also charged with violating his
probation in the metal knuckles case.
       In August 2014, defendant admitted violating his probation. He also pleaded no
contest to the second degree burglary offense. He was reinstated on probation in the
metal knuckles case and granted probation in the burglary case.
       In January 2015, the probation officer filed a petition to modify the terms of
defendant’s probation in both cases. The probation officer advised the court that
defendant had been arrested on an unrelated matter on December 8, 2014, and that he
remained in custody subject to a probation hold. In the possession of metal knuckles
case, the probation department alleged defendant failed to: (1) report for office visits
with his probation officer in May and October of 2014; (2) provide proof of employment

                                             3
or enrollment in an education or training program; and (3) make himself available for
search.
       The probation officer reported that defendant’s criminal history included three
prior felony convictions for: (1) unlawful possession of a weapon (former § 12020,
subd. (a)(1)); (2) possession of ammunition by a person prohibited from owning a firearm
(former § 12316, subd. (b)); and (3) possession of a controlled substance (Health & Saf.
Code, § 11377, subd. (a)). Defendant—who was 34 years old—also had 25 prior
misdemeanor convictions for a variety of offenses, including using controlled substances
(Health & Saf. Code, § 11550, subd. (a)); driving under the influence (Veh. Code,
§ 23152, subd (b)); driving on a suspended license (Veh. Code, § 14601.2); prowling
(§ 647, subds. (f), (h), & (i)); possession of burglary tools (§ 466); receiving stolen
property (§ 496); various forms of vandalism (§§ 594, 594.2); public intoxication (§ 647,
subd. (f)); disturbing the peace (§ 415); resisting arrest (§ 148, subd. (a)(1)); unlawful
sexual intercourse with a minor (§ 261.5, subd. (c)); and willful violation of a protective
order (§ 166, subd. (c)(1)).
       At the January 22, 2015 hearing on the petition to modify probation, the parties
entered into a negotiated disposition. Defendant admitted the violations of probation and
was continued on probation on the original terms and conditions in both cases, except the
court: (1) deleted the unserved portion of defendant’s jail sentence (64 days) that was a
condition of his probation in the burglary case; (2) ordered defendant to serve nine
months in jail as a condition of probation in the metal knuckles case and 180 days in jail
for the probation violation, concurrent to the term on the metal knuckles case;
(3) modified the amount of the probation supervision fee, reducing it to $30 per month
each for the metal knuckles conviction and the burglary conviction, for a total of $60 per
month; and (4) awarded custody credits against each of the jail terms imposed.
       In February 2015, defendant filed a petition for resentencing under Proposition 47
(§ 1170.18, subd. (a)). The district attorney agreed the petition should be granted in the

                                              4
burglary case, but opposed the petition in the metal knuckles case, arguing a conviction
for possession of metal knuckles does not qualify for resentencing under Proposition 47.
      The trial court denied the petition in the possession of metal knuckles case
“because only certain theft and simple drug possession charges are affected by the
resentencing provisions of” section 1170.18 and none of the statutory provisions in
Proposition 47 “authorize misdemeanor treatment” of defendant’s conviction for
possession of metal knuckles.
      Defendant appeals his conviction in the possession of metal knuckles case only.

                                      DISCUSSION

      We reviewed the entire record under Wende, supra, 25 Cal.3d 436. We find
defendant was adequately advised of his rights and the consequences of his plea.
Defendant freely, knowingly, and intelligently waived his rights and entered his plea, and
no sentencing error appears. The trial court properly denied defendant’s petition under
Proposition 47 in the possession of metal knuckles case. We thus conclude there is no
arguable issue on appeal.

                                      DISPOSITION

      The judgment is affirmed.




                                            5
                      _______________________________
                      Márquez, J.




WE CONCUR:




_____________________________________
 Rushing, P. J.




______________________________________
 Grover, J.
