Filed 5/8/13 P. v. Gonzales 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                     F063946

                   v.                                           (Super. Ct. Nos. F11600749, F10601961)

GEORGE PRENDIZ GONZALES,                                                             OPINION

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Hilary A.
Chittick, Judge.
         Johanna R. Pirko, 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 Poochigian, Acting P.J., Detjen, J., and Peña, J.
       On November 1, 2011, in Fresno County Superior Court case No. F11600749
(case No. F11600749), a jury convicted appellant, George Prendiz Gonzales, of two
felony counts of possession of heroin (Health & Saf. Code, § 11350, subd. (a)) and two
counts of unauthorized possession of a hypodermic needle or syringe (Bus. & Prof. Code,
§ 4140), a misdemeanor. That same day, in a separate proceeding, appellant admitted
allegations that he had suffered a “strike”1 and that he had served two separate prison
terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)).
       Also on November 1, 2011, in Fresno County Superior Court case No. F10601961
(case No. F10601961), appellant, pursuant to a plea agreement, pled guilty to second
degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and, as in case No. F11600749,
admitted one strike allegation and two prior prison term enhancement allegations. One of
the terms of the plea agreement was that appellant would receive a sentence covering
both cases of five years four months.
       On December 5, 2011, the court struck appellant’s strike pursuant to Penal Code
section 1385 and imposed the agreed-upon prison term of five years four months,
consisting of the two-year midterm on the substantive offense in case No. F10601961,
eight months on each of the two felonies in case No. F11600749, and one year on each of
the two prior prison term enhancements. On each of the two misdemeanors, the court
credited appellant with time served.
       In case No. F10601961, appellant did not request, and the court did not issue, a
certificate of probable cause (Pen. Code, § 1237.5).




1       We use the term “strike” as a synonym for “prior felony conviction” within the
meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12), i.e., a
prior felony conviction or juvenile adjudication that subjects a defendant to the increased
punishment specified in the three strikes law.


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          Appellant’s appointed appellate counsel has filed an opening brief which
summarizes the pertinent facts, with citations to the record, raises no issues, and asks that
this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
Appellant has not responded to this court’s invitation to submit additional briefing. We
affirm.
                                           FACTS
Case No. F11600749
March 15, 2011 Offenses
          At approximately 6:30 p.m. on March 15, 2011, Officer Manuel Chavez of the
Sanger Police Department (SPD) was on foot in a park in Sanger, conducting a “[p]atrol
check” for “criminal activity,” when, from a distance of approximately six to eight feet,
he saw appellant, his back towards the officer, “straddling” a park bench and holding a
syringe which contained a “brown substance.”2 On the bench approximately six inches
from where appellant was sitting was a “rig,” i.e., “a combination of tools used to prepare
the drug,” consisting of an aluminum cap, a piece of cotton and another syringe. There
was a “Styrofoam” cup between his legs.
          Officer Chavez approached appellant from behind, and when appellant became
aware of the officer’s presence, he (appellant) quickly dropped the syringe he was
holding, placed the aluminum cap and cotton in the cup, and “swipe[d]” the other syringe
off the bench. Chavez asked appellant to stand, appellant complied and moved away
from the bench, and the officer picked up off the ground the syringe appellant had been
holding. Chavez asked appellant what it was and appellant responded, “‘You know man.
It’s heroin.’” The syringe that appellant swiped to the ground contained a brown residue.


2    Except as otherwise indicated, information in this section is taken from Officer
Chavez’s trial testimony.


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         A Fresno County Sheriff’s Department criminalist testified that he conducted a
chemical test of the liquid in one of the syringes, and that the test showed the syringe
contained .52 milliliters of heroin. This amount constituted a “usable amount.”
May 11, 2011 Offenses
         At approximately 11:00 p.m. on May 11, 2011, SPD Officer Jeffrey Bise was on
patrol in a patrol vehicle when he saw a person “crouched down in [an] alleyway.”3
After initially driving past the alley, the officer turned around, pulled into the alley, got
out of his patrol car and shined his spotlight into the alley. At that point, he saw a person,
whom he recognized as appellant, walking toward him. There was no one else in the
alley.
         Bise asked appellant if he had any needles in his possession. Appellant stated, “I
might,” reached into a back pocket, pulled out a piece of white tissue paper and “said,
‘Damn it[,] I do,’ or something to that effect.” At that point, appellant removed some
needles from his back pocket, and Bise had him place them on the hood of the patrol car.
Bise then arrested appellant, placed him in the back of the patrol car and walked to the
spot in the alley where the officer had seen appellant crouching. There he saw, lying on
the ground, a syringe containing a “dark liquid substance.”
         A police criminalist testified that a chemical test of the substance in the syringe
revealed that the substance was .27 milliliters of heroin. He opined that amount was a
“usable amount.”
         Officer Bise obtained a urine sample from appellant. A forensic toxicologist
testified that a chemical test of appellant’s urine sample revealed the presence of three




3      Except as otherwise indicated, information in this section is taken from Officer
Bise’s testimony.


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chemicals of the opiate class of drugs associated with heroin, including one that “only
comes from heroin.”
Case No. F10601961
       The report of the probation officer states, based on information set forth in a
Sanger Police Department (SPD) crime report, the following: At approximately 12:30
p.m. on September 22, 2010, the victim, “Robert C. (age 58)” (Robert) left his garage
door open while he was in his backyard, doing yard work. At approximately 12:40 p.m.,
“Miguel O.” (Miguel) told Robert that he (Miguel) had seen a person go into Robert’s
garage and remove a “weed eater” tool.
       Robert “immediately began searching for the subject.” He “quickly found”
appellant, who matched the description Miguel had provided. Robert “noted that
[appellant] no longer possessed the weed eater.” Appellant told Robert that he
(appellant) “had seen someone else take the weed eater.”
       Robert went home, and found that he was missing some other items, including a
“reciprocal saw” and a “Compound Bow.”
       Appellant was taken into custody on September 23, 2010. On October 4, 2010,
Robert “positively identified [appellant] from a photographic lineup.”
                                      DISCUSSION
       Following independent review of the record, we have concluded that no
reasonably arguable legal or factual issues exist.
                                      DISPOSITION
       The judgment is affirmed.




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