Filed 10/18/13 P. v. Trevino 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F064891
         Plaintiff and Respondent,
                                                                             (Super. Ct. Nos. F11903466,
                   v.                                                                F10904144)

LORENZO GILBERT TREVINO, JR.,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Don Penner,
Judge.
         Allan E. Junker, 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 Franson, J.
                                   INTRODUCTION
       On May 12, 2011, appellant, Lorenzo Gilbert Trevino, Jr. pled guilty in Fresno
Superior Court case No. F10904144, to one count of second degree burglary (Pen. Code,
§§ 459 & 460, subd. (b))1 and admitted a prior serious felony conviction under the three
strikes law (§§ 667, subds. (b)-(i) & 1170.12). Appellant appealed this conviction and on
July 31, 2013, we issued our opinion in case No. F063621, rejecting appellant’s challenge
to the number of his custody credits and affirming his conviction.2
       On January 26, 2012, the trial court denied appellant’s motion made pursuant to
People v. Marsden (1970) 2 Cal.3d 118.
       On February 6, 2012, a first amended information was filed in Fresno Superior
Court case No. F11903466, alleging that on June 5, 2011, appellant committed second
degree robbery (§ 211, count 1) and petty theft with a qualifying prior petty theft
conviction (§ 666, count 2). The information further alleged a prior serious felony
conviction under the three strikes law and two prior prison term enhancements (§ 667.5,
subd. (b)). On that same date, the parties entered into a plea agreement in which
appellant would admit petty theft with a prior, the prior serious felony conviction, and a
prior prison term enhancement in exchange for dismissal of the remaining allegations.
       Appellant signed and initialed a felony advisement, waiver of rights, and plea form
acknowledging the terms of the plea agreement and the consequences of his plea.
Appellant further 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). The court advised


1      All statutory references are to the Penal Code.
2       On November 5, 2012, we granted appellant’s request to take judicial notice of the
file in case No. F063621, without making a determination of the relevance of the
documents judicially noticed. Although we have not generally referred to the record in
case No. F063621, we have referred to our opinion in that case.


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appellant of his Boykin/Tahl rights and accepted appellant’s waiver of those rights. The
court advised appellant of the consequences of his plea. Appellant admitted count 2, the
prior serious felony conviction, and the prior prison term enhancement.
       On March 7, 2012, the court denied appellant’s request to have the prior serious
felony allegation stricken. The court sentenced appellant to the midterm of two years,
doubled to four years pursuant to the three strikes law. The court imposed a consecutive
term of one year for the prior prison term enhancement. The court ordered a restitution
fine of $1,200.
       On March 7, 2012, the court resentenced appellant in case No. F10904144. The
court made this case subordinate to case No. F11903466, imposed the sentence of one-
third the midterm of two years, or eight months, and doubled that term to 16 months
pursuant to the three strikes law. The term in case No. F10904144, was ordered to run
consecutive to the term imposed in case No. F11903466.
       On March 12, 2012, the court clarified its award of custody credits, granting 322
days of credits for being in custody and 160 days of conduct credits, for total custody
credits of 482. The trial court granted appellant’s request for a certificate of probable
cause. Appellate counsel has filed a brief seeking independent review of the case by this
court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende.)
                                          FACTS
       On the afternoon of June 5, 2011, appellant left a Walmart store in Fresno with
shirts that were rolled up and stuffed under a girdle beneath his shirt. Appellant also had
a pair of khaki pants hidden under his jeans. Appellant appeared intoxicated. When
confronted by a loss prevention employee of Walmart about taking property from the
store, appellant profanely replied that he was returning nothing. Appellant removed a
weapon from his front pocket that was silver and appeared to have a pointed tip.



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                           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 October 25, 2012, we invited appellant to submit
additional briefing. To date, he has not done so.
       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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