PEOPLE v. AVILA

No. B275507.

THE PEOPLE, Plaintiff and Respondent, v. GEORGE EDWARD AVILA, Defendant and Appellant.

Court of Appeals of California, Second District, Division Four.


Attorney(s) appearing for the Case

Laurel Simmons , under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

MANELLA, J.

Appellant George Edward Avila was charged with attempted first degree robbery (Pen. Code, §§ 664/211) and false imprisonment by violence (Pen. Code § 236).1 It was further alleged that prior to the commission of the charged offenses, he had been convicted of a serious and/or violent felony — an attempted robbery in 2012 — as defined in section 667, subdivision (d), section 1170.12, subdivision (b), section 1192.7, and section 667.5, subdivision (c), and that he had suffered a prior conviction within the meaning of section 667.5, subdivision (b) and section 667, subdivision (a)(1).

The trial on the prior was bifurcated. The evidence presented by the prosecution established that on September 8, 2015, appellant entered the hotel room of two female Canadian tourists when they were absent and rifled through their belongings. When one of the women returned and found him in the room, appellant temporarily prevented her from leaving by using physical restraint, speaking to her in a menacing way, and pretending to have a weapon. The jury found appellant guilty of felony false imprisonment, but was unable to reach a verdict on the attempted robbery count, which was dismissed. Appellant admitted the prior. Appellant was on parole at the time of the offense.

A defense motion to strike the prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 was denied. Appellant was sentenced to five years, consisting of the mid-term of two years, doubled pursuant to section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (e), plus a one-year enhancement pursuant to section 667.5, subdivision (b). In addition, the following fines were imposed: a $300 restitution fine under section 1202.4, subdivision (b); a $300 parole supervision restitution fine under section 1202.45, stayed until such time as parole was revoked; a $40 court operations assessment fee under section 1465.8, subdivision (a)(1); and a $30 criminal conviction assessment fee pursuant to Government Code section 70373, subdivision (a). Appellant received 332 days of custody credit.

After reviewing the record, appellant's court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436. On October 21, 2016, we sent a letter to appellant's last known address, advising him that he had 30 days within which to submit by brief or letter any contentions or argument he wished this court to consider. We received no response.

This court has examined the entire record, and is satisfied no arguable issues exist. Appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the jurisdictional and dispositional orders. (Smith v. Robbins (2000) 528 U.S. 259, 278.)

DISPOSITION

The judgment is affirmed.

WILLHITE, Acting P. J. and COLLINS, J., concurs.

FootNotes


1. Undesignated statutory references are to the Penal Code.

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