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P. v. Rowley

P. v. Rowley
11/30/09



P. v. Rowley



Filed 11/24/09 P. v. Rowley CA4/2



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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





FOURTH APPELLATE DISTRICT





DIVISION TWO



THE PEOPLE,



Plaintiff and Respondent,



v.



DENNIS ROBERT ROWLEY,



Defendant and Appellant.



E048386



(Super.Ct.Nos. SWF020693 &



RIF121538)



OPINION



APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed.



Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.



No appearance for Plaintiff and Respondent.



Pursuant to a plea agreement, on March 16, 2009, defendant Dennis Robert Rowley, represented by counsel, pled guilty to possession of hydrocodone for sale (Health & Saf. Code, 11351) (count 1); transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)) (count 2); and possession of methamphetamine for sale (Health & Saf. Code, 11378) (count 3) in case No. RIF121538. Additionally, in case No. SWF020693, defendant pled guilty to receiving stolen property, to wit, credit cards and checks. (Pen. Code, 496, subd. (a).) In return, the remaining allegations in both cases were dismissed and defendant was sentenced to a total term of four years in state prison in case No. RIF121538; and a total term of two years in state prison in case No. SWF020693, to be served concurrently with the sentence imposed in case No. RIF121538.



Defendant appeals from the judgment. His notice of appeal challenges the sentence or other matters occurring after the plea, the validity of the plea, and the assistance he received by his trial counsel.



I



FACTUAL AND PROCEDURAL BACKGROUND[1]



A. Case No. RIF121538



On January 21, 2005, Investigator Anguiano executed a search warrant at defendants residence. Prior to the execution of the search warrant, Investigator Anguiano and other officers saw defendant leaving the house in one of his vehicles. Detective Woolley followed the vehicle. At Investigator Anguianos request, a uniformed police officer stopped the vehicle and detained defendant. Investigator Anguiano arrived and explained the reason for the detention and also provided defendant with a copy of the search warrant.



Detective Woolley conducted a search of defendants vehicle and found baggies containing marijuana and methamphetamine. The marijuana weighed 2.2 grams and the methamphetamine 18.9 grams. The detective also found a glass methamphetamine pipe, a digital scale, another .7 grams of methamphetamine, and a plastic straw.



Investigator Anguiano conducted a search of defendants residence. In pertinent part, he recovered another digital scale, another methamphetamine pipe, pay/owe sheets, plastic baggies, and methamphetamine in defendants office, bedroom, and hallway closet. The methamphetamine in the closest weighed a total of 24.6 grams. The investigator also found 13 hydrocodone pills prescribed to someone other than defendant. Based on his training and experience and the items recovered, Investigator Anguiano determined defendant possessed the methamphetamine and the hydrocodone pills for the purpose of sales.



B. Case No. SWF020693



On April 2, 2007, around 9:12 p.m., Deputy Pendleton conducted a valid traffic stop of a vehicle in which defendant was a rear passenger. Defendant had a black zip-up sweater between his legs and knees on the floorboard in front of his seat. The deputy had the occupants of the vehicle step outside. When defendant exited the vehicle, he left the sweater behind. Deputy Pendleton subsequently searched the vehicle incident to the drivers lawful arrest. In relevant part, the deputy found stolen credit cards, checks, and debit cards in the sweaters pockets.




C. Procedural History



Four felony complaints were filed against defendant based on the above incidents, as well as two other matters.[2] On May 23, 2007, defendant pled guilty to four felony counts and one misdemeanor count in all four cases. In return, defendant was to enter the ROC program.[3]



Defendant was eventually rejected by the ROC program because he was not amenable; his plea was withdrawn on June 19, 2007.



Preliminary hearings were then held on all four cases and informations were subsequently filed in each case.



On July 16, 2008, the trial court granted the Peoples motion to consolidate case Nos. RIF121538, RIF122401, and RIF128085. Case No. RIF121538 was assigned as the lead case.



On January 23, 2009, the trial court granted defendants motion to dismiss two misdemeanor counts in case No. RIF121538.



Following several continuances, on March 16, 2009, defendant pled guilty to possession of hydrocodone for sale (Health & Saf. Code, 11351) (count 1); transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)) (count 2); and possession of methamphetamine for sale (Health & Saf. Code, 11378) (count 3) in case No. RIF121538. In case No. SWF020693, defendant pled guilty to receiving stolen property, to wit, credit cards and checks. (Pen. Code, 496, subd. (a).)



At the change of plea hearing, the court directly examined defendant. The court reviewed the plea form with defendant and explained the constitutional rights defendant would be waiving by pleading guilty. The court also explained the consequences of pleading guilty. Defendant indicated that he understood his rights and the consequences of pleading guilty. Defendant also acknowledged that he had enough time to speak with his attorney about his cases and any defenses, and replied in the negative to the courts inquiry of whether defendant had any questions. The court found that defendant knowingly and freely entered into his pleas.



In regards to the factual basis for the pleas, the court directly examined defendant and asked if he had possessed the hydrocodone and methamphetamine for the purpose of sales in January 2005. Defendant replied in the affirmative. Defendant also replied in the affirmative after the court asked him whether he had transported methamphetamine in his vehicle as charged in Count 2. The court also inquired of defendant whether he had possessed credit cards or checks known to be stolen on April 2, 2007. Defendant responded, Yes. After examining defendant, the court found that there was a factual basis for each plea.



Defendant was thereafter immediately sentenced in accordance with the plea agreements. The remaining allegations in both cases were dismissed and defendant was sentenced to a total term of four years in state prison in case No. RIF121538; and a total term of two years in state prison in case No. SWF020693, to be served concurrently with the sentence imposed in case No. RIF121538. Defendant was awarded presentence custody credits of 1,461 days for time served in case No. RIF121538 and 1,026 days in case No. SWF020693.



On May 13, 2009, defendant filed notices of appeal in both cases, based on the sentence or other matters occurring after the plea, the validity of the plea, and ineffective assistance of counsel. Defendants request for a certificate of probable cause was denied.



II



DISCUSSION



Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court undertake a review of the entire record.



We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.



First, in the absence of a certificate of probable cause, we may not consider the validity of the pleas, whether the changes of plea in both cases were knowingly, intelligently, or voluntarily made, or whether he was deprived of effective assistance of counsel. (Pen. Code, 1237.5; see also People v. Stubbs (1998) 61 Cal.App.4th 243, 244.) The sentences were authorized and were imposed in accordance with the terms of the plea agreements. (Pen. Code, 460, subd. (b), 461, subd. (2).)



In addition, because defendant personally admitted that he had possessed hydrocodone and methamphetamine for the purpose of sales; that he had transported methamphetamine; and that he had possessed credit cards or checks knowing they had been stolen, there is an adequate factual basis for the plea. (People v. Holmes (2004) 32 Cal.4th 432, 440.) Moreover, assuming arguendo that the trial courts on-the-record inquiry was insufficient under Holmes, any error was harmless. The record contains preliminary hearing transcripts and police reports relating to both cases.



We have completed our independent review of the record and find no arguable issues.



III



DISPOSITION



The judgment is affirmed.



NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RICHLI



Acting P.J.



We concur:



GAUT



J.



MILLER



J.



Publication courtesy of California pro bono legal advice.



Analysis and review provided by La Mesa Property line attorney.



San Diego Case Information provided by www.fearnotlaw.com







[1] The underlying factual background is taken from the preliminary hearings related to each case.



[2] The four pending cases were case Nos. RIF121538, RIF122401, RIF128085, and SWF020693.



[3] Recovery Opportunity Center.





Description Pursuant to a plea agreement, on March 16, 2009, defendant Dennis Robert Rowley, represented by counsel, pled guilty to possession of hydrocodone for sale (Health & Saf. Code, 11351) (count 1); transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)) (count 2); and possession of methamphetamine for sale (Health & Saf. Code, 11378) (count 3) in case No. RIF121538. Additionally, in case No. SWF020693, defendant pled guilty to receiving stolen property, to wit, credit cards and checks. (Pen. Code, 496, subd. (a).) In return, the remaining allegations in both cases were dismissed and defendant was sentenced to a total term of four years in state prison in case No. RIF121538; and a total term of two years in state prison in case No. SWF020693, to be served concurrently with the sentence imposed in case No. RIF121538.
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