Filed 8/28/13 P. v. Ruiz CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,

         Plaintiff and Respondent,                                                     F064879

                   v.                                                     (Super. Ct. No. F11906755)

ERIK VINCENT RUIZ,
                                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler
Tharpe, Judge.

         J. Edward Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-


*        Before Cornell, Acting P.J., Kane, J., and Franson, J.
                                    INTRODUCTION
       Appellant, Erik Vincent Ruiz, was charged in a criminal complaint filed on
November 29, 2011, with felony first degree burglary (Pen. Code, §§ 459 & 460, subd.
(a), count 1)1 and one count of making a criminal threat, a felony (§ 422, count 2). The
complaint further alleged a prior prison term enhancement (§ 667.5, subd. (b)).
       In early January 2012, appellant was evaluated by a psychologist pursuant to
section 1368 and found competent to stand trial. On January 24, 2012, appellant entered
into a plea agreement. Appellant initialed and executed a felony advisement, waiver of
rights, and plea form. Under the terms of the plea agreement, appellant would admit
count 1 in exchange for the dismissal of the other allegations and a stipulated sentence of
four years. Appellant acknowledged the consequences of his plea and waived his
constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl
(1969) 1 Cal.3d 122 (Boykin/Tahl).
       At the change of plea hearing, appellant’s counsel reviewed the terms of the plea
agreement with the trial court. The court advised appellant of, and appellant waived, his
constitutional rights pursuant to Boykin/Tahl. The court advised appellant of the
consequences of his plea, including that the maximum punishment he faced was six years
in prison. The parties stipulated to a factual basis for the plea. Appellant pled guilty to
count 1. The remaining allegations were dismissed.
       On February 24, 2012, the court had conveyed to the parties that it was not
accepting the stipulated sentence of four years. The court granted defense counsel’s
motion for a continuance for appellant to review his options. On March 9, 2012, defense
counsel represented that appellant was given the options of entering a guilty plea on



1      All statutory references are to the Penal Code.


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count 2, and being sentenced to prison for four years eight months, or to keep the current
plea intact and receive a sentence of six years.
       Consistent with the revised agreement, the trial court sentenced appellant to prison
for six years. Appellant was granted actual custody credits of 106 days and conduct
credits of 106 days for total custody credits of 212 days. He was also ordered to pay
various fees and fines. The trial court did grant appellant a certificate of probable cause.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende).
                                          FACTS
       On November 25, 2011, Brian S. saw someone with a backpack jump over the
fence to a gated community, enter a waiting car, and speed away. Brian S. also saw a
second person, later identified as appellant, look over the wall from the same residence
and then return into the yard. Shortly thereafter, Brian S. called the police when he saw
appellant walking down the street with a purse and a handbag. The police contacted
appellant and found that the items appellant was carrying had been stolen from the
residence in the gated community. Brian S. identified appellant to the police. Shoeprints
matching those of appellant were found in the yard and the residence that was
burglarized. Appellant later accused Brian S. of being a snitch and threatened to kill
Brian S. and his family.
                            APPELLATE COURT REVIEW
       Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel indicating that appellant was advised he could file his
own brief with this court. By letter on September 13, 2012, we invited appellant to
submit additional briefing. To date, he has not done so.

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       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                     DISPOSITION
       The judgment is affirmed.




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