Filed 4/22/16 P. v. Fernandez CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                     G052712

                   v.                                              (Super. Ct. No. 15CF1031)

JORGE FIDEL FERNANDEZ,                                             OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, John S.
Adams, Judge. Affirmed.
                   Erica Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.
                                              *              *               *
              A jury convicted Jorge Fidel Fernandez of misdemeanor indecent exposure
(Pen. Code, § 314, subd. (1)). Fernandez appealed, and his appointed counsel filed a
brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende).
Counsel summarized the facts and procedural history of the case, but raised no specific
issues, and asked this court to review the record to determine whether there were any
arguable matters. Counsel submitted a declaration stating she thoroughly reviewed the
record. Counsel advised Fernandez she would file a Wende brief, and provided a copy of
the brief to him. She also advised Fernandez he could personally file a supplemental
brief on his own behalf raising any issues he believed worthy of consideration, and she
sent him a copy of the appellate record. She also informed Fernandez he could ask the
court to relieve her as counsel. We gave Fernandez 30 days to file a supplemental brief,
but he has not responded. We have reviewed the record, found no arguable issues, and
therefore affirm the judgment.




                        FACTS AND PROCEDURAL HISTORY
              In June 2015, the Orange County District Attorney filed an information
alleging Fernandez committed the felony offenses of resisting an executive officer by
force or violence (Pen. Code, § 69 [counts 1 & 2]; all statutory references are the Penal
Code), misdemeanor indecent exposure (§ 314, subd. (1) [count 3]), and misdemeanor
false representation to a peace officer (§ 148.9, subd. (a)). It also alleged Fernandez had
suffered three prior convictions within the meaning of section 667.5, subdivision (b).
              At Fernandez’s trial, Jovita Lopez testified she was walking her six-year-
old grandson to his Santa Ana school on the morning of May 13, 2015. She saw
Fernandez across the street from the school, walking and grabbing his pants up and down
with one hand while waving or beckoning in the direction of the school with the other



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hand. On three occasions he pulled down his pants so that he exposed his penis. He was
laughing and calling children over.
              Lopez’s husband Raul Ochoa, who had just driven Lopez and the grandson
to an area near the school, also saw Fernandez pull his pants down to his knees, grab his
penis, and call “the little kids, come here, come here, come here.” Lopez apparently
advised school officials, who phoned the police.
              Santa Ana Unified School District Police Officer Peter Krantz, wearing a
uniform and driving a marked patrol car, saw Fernandez standing facing the school with
his hands in his pockets and wearing no shoes. Fernandez “didn’t seem normal” and
“wasn’t coherent.” Krantz said something like “police officer, come here,” but
Fernandez said he had “an emergency” and had to leave, and then sprinted away. Krantz
radioed other officers and pursued Fernandez in his car. The officers cornered Fernandez
in a grocery store parking lot, and Corporal Jean-Pierre Nadeau tackled him after he
refused orders to get down on the ground. Fernandez resisted and struggled with Nadeau
and Krantz on the ground, ignoring repeated commands to submit, but officers, now
numbering four or five in total, managed to pull Fernandez’s arms out from under his
body and handcuff him. Nadeau, whose arm got stuck under Fernandez’s body during
the struggle, suffered scratches on his right forearm.
Defense
              Patricias Barcenas worked at the elementary school. After Lopez and
Ochoa reported Fernandez’s behavior, she reported the incident to the principal’s
secretary and then went outside. She saw Fernandez grabbing his pants and “holding on
to it because . . . he wasn’t wearing a belt . . . [and] they would drop and he would pick
them up . . . .” His pants appeared to be too large for him. He also appeared to be “drunk
or something.”
              Ochoa told a defense investigator Fernandez stuck his tongue out and
moved his head as if to bite his own ear. When an officer pulled up, Fernandez pulled

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down his pants and began shouting “look, motherfucker,” and began masturbating in
front of the officer. The officer told him to pull up his pants and Fernandez said “fuck
you, fuck you.” Krantz denied that Fernandez made the “motherfucker” statement or
masturbated in front of him.
              The trial court acquitted (§ 1118.1) Fernandez of resisting an executive
officer by force or violence (§ 69 [counts 1 and 2]) and false representation (§ 148.9
[count 4]). The jury convicted him of indecent exposure. The court suspended
imposition of sentence and placed Fernandez on informal probation on various terms and
conditions, including a jail term with credit for time served. The court advised him he
had to register as a sex offender (§ 290).


                                       DISCUSSION
              Following Wende guidelines, we have reviewed counsel’s brief and the
appellate record and discern no arguable issue. This includes counsel’s suggestion we
consider whether sufficient evidence supported Fernandez’s conviction for indecent
exposure. Fernandez has not availed himself of the opportunity to file a supplemental
brief (People v. Kelly (2006) 40 Cal.4th 106, 111 [appellate court must address issues
raised personally by appellant in a Wende proceeding]), nor has he requested to have
appellate counsel relieved. We therefore affirm the judgment. (Wende, supra, 25 Cal.3d
at p. 443.)




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                                   DISPOSITION
            The judgment is affirmed.



                                            ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




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