Filed 2/26/14 P. v. Ayala CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040092
                                                                     (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1236954)

                  v.

ROBERT ANGELO AYALA,

        Defendant and Appellant.


         In August 2013, pursuant to a negotiated plea under which he would receive a
maximum 32-month sentence, defendant Robert Angelo Ayala pleaded no contest to
possession of a controlled substance, phencyclidine, a felony (Health & Saf. Code,
§ 11377, subd. (a)), possession of drug paraphernalia, a misdemeanor (Health & Saf.
Code, § 11364.1), and resisting, delaying or obstructing a peace officer, a misdemeanor
(Pen. Code, § 148, subd. (a)).1 He also admitted all enhancements alleged in the
information, namely, allegations that he had two prior strike convictions and had three
prison prior convictions. The court exercised its discretion to strike both of the prior
strike allegations pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero) and struck two of the prison prior allegations. It imposed a suspended sentence
of 32 months and placed defendant on probation for five years. Defendant filed a timely
appeal. We will affirm.
         1
             All further statutory references are to the Penal Code unless otherwise stated.
                               FACTUAL BACKGROUND2
        On the afternoon of June 25, 2012, San José Police Officer Bryan Tran responded
to a reported disturbance in the parking lot of a California Check Cashing business. It
was reported that a Hispanic male had a gun which he had placed in his back pocket, and
that he had entered a green truck. Officer Tran saw a green truck leaving the lot with a
Hispanic male behind the wheel. Officer Tran identified that person in court as
defendant. Officer Tran initiated a traffic stop, using his red lights and siren; the truck
pulled off to the side of the road. As Officer Tran and a backup officer, Officer Martinez,
approached the truck on foot, it sped away. (The truck had stopped for approximately 30
to 45 seconds.) Officers Tran and Martinez then followed the truck in their separate
patrol vehicles. The officers did not use their lights and sirens in following defendant,
because of department policy about the dangers of patrol car pursuits of vehicles. The
truck was travelling at approximately 45 miles per hour in a 25 mile per hour zone;
Officer Tran also observed defendant run a stop sign. The truck stopped about one mile
from the original scene. The officers “initiated a felony car stop and ordered the suspect
out of the vehicle.” After defendant got out of the truck, he was taken into custody.
        After identifying the driver, Officers Tran and Martinez obtained information on
his status by radio: Defendant had a suspended license and was on probation and
therefore “searchable.” Another officer, Officer Rapp, conducted a search of defendant’s
truck; he found a glass smoking pipe and three leños (marijuana cigarettes laced with
PCP).
                             PROCEDURAL HISTORY
        Defendant was charged by information filed April 12, 2013, with possession of a
controlled substance, phencyclidine, a felony (Health & Saf. Code, § 11377, subd. (a));

        2
       The factual background is derived from the reporter’s transcript of the hearing on
May 14, 2013, on defendant’s motion to suppress evidence pursuant to section 1538.5.



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possession of drug paraphernalia, a misdemeanor (Health & Saf. Code, § 11364.1); and
resisting, delaying or obstructing a peace officer, a misdemeanor (§ 148, subd. (a)). It
was alleged in the information that defendant had previously been convicted of two
violent or serious felonies, i.e., strike offenses (§§ 667, subds. (b)-(i); 1170.12), namely,
assault with a deadly weapon with personal infliction of great bodily injury (§§ 245,
subd. (a)(1), 12022.7, subd. (a)), and robbery (§§ 211-212.5, subd. (c)). It was further
alleged that defendant had been convicted of three felonies, each of which resulted in his
having served a prison term, and he had not remained free of prison custody (or the
imposition of a term of jail custody) for a period of five years (§ 667.5, subd. (b); prison
priors).
       On April 26, 2013, defendant filed a motion to suppress evidence pursuant to
section 1538.5, which was opposed by the People. After hearing evidence on May 14,
2013, receiving further briefing from defendant, and hearing argument, the court denied
the motion.
       On July 8, 2013, defendant pleaded no contest to each of the three counts, and he
admitted the two strike prior and three prison prior allegations of the information. He
entered his plea on the express condition that he would receive a maximum prison
sentence of 32 months, and with the further understanding that he would be filing a
Romero motion seeking an order dismissing the strike allegations.
       Defendant filed a motion to dismiss the strike priors under Romero, and the People
opposed the motion. On August 16, 2013, the court granted the Romero motion and
dismissed the prior strike allegations. The court sentenced defendant to 32 months in
prison (16 months for the felony drug possession conviction, doubled based upon the
application of one prison prior); struck the two remaining prison prior allegations;
suspended imposition of the sentence with a “zero tolerance” for any further arrests,
failures to appear, or any other illegal conduct; placed defendant on formal probation for



                                              3
five years; and ordered defendant’s release to the Salvation Army for enrollment in a
residential drug treatment program.
       Defendant filed a timely notice of appeal.
                                       DISCUSSION
       We appointed counsel to represent defendant in this court. Appointed counsel
filed an opening brief which stated the case and the facts but raised no specific issues.
We notified defendant of his right to submit written argument on his own behalf within
30 days. We have received no written argument from defendant.
       We have reviewed the entire record pursuant to People v. Wende (1979) 25 Cal.3d
436. Based upon that review, we have concluded that there is no arguable issue on
appeal.




                                              4
                            DISPOSITION
The judgment is affirmed.




                                          Márquez, J.




WE CONCUR:




Rushing, P.J.




Premo, J.




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