Fear Not Law Articles: P. v. Bryant

P. v. Bryant

Filed 9/21/07 P. v. Bryant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

GREGORY BRYANT,

Defendant and Appellant.

E042067

(Super.Ct.No. FBA8657)

OPINION

APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed.

Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

In 2005, defendant pled guilty to being an ex-felon in possession of a firearm. (Pen. Code, 12021, subd. (a)(1).)^{^[1]} He was granted probation. A petition to revoke his probation was filed in 2006. While this matter was pending, the trial court declared a doubt as to defendants competency and suspended proceedings. ( 1368.) Two alienists were appointed, who examined defendant, and after considering their reports, the trial court declared defendant to be competent and reinstated proceedings. At the conclusion of the contested revocation of probation hearing, the trial court found defendant to be in violation of the terms of his probation that he break no law and not possess drug paraphernalia. It sentenced him to prison for the mid term of two years.

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 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

We offered the defendant an opportunity to file a personal supplemental brief, which has been read and considered.

Facts

Defendants probation officer testified that defendant told him that he had been arrested for possession of drug paraphernalia and that he had additional paraphernalia in his vehicle. The officer conducted a probation search of defendants vehicle and found over 2,700 brand new one-inch square baggies, commonly used to package drugs, and one brand new implement each for smoking marijuana and methamphetamine, all of which defendant said he had purchased in downtown Los Angeles. Defendant told his probation officer he intended to sell the items. Defendants possession of the items violated the term of his probation that he not possess drug paraphernalia.

Defendants Contentions

In his half-page personal supplemental brief, defendant contends that his trial counsel was incompetent for failing to contact witnesses who were owners of the items in question. [A] particular decision [by trial counsel] not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsels judgments. (In re Visciotti (1996) 14 Cal.4th 325, 348.) Both in his statement to the probation officer and his testimony at the probation revocation hearing, defendant asserted that he was the owner of the items, having purchased them in Los Angeles to sell at the local swap meet. Therefore, the record does not support defendants current assertion that there were any owners other than himself for his trial attorney to contact.

Defendant also asserts that the items, themselves, were not introduced into evidence, although his probation officer stated at the probation revocation hearing that he had them in his car and offered to get them for defense counsel. He also points out that none of the items had been ever used for anything. However, the evidence introduced at the hearing was sufficient to prove, by a preponderance (People v. Rodriguez (1990) 51 Cal.3d 437, 441), that defendant was in violation of the conditions of his probation.

Finally, the defendant states, [T]he officer wrote that the item in the hand of another person would not be narcotic paraphernalia [sic][.] The record does not support this assertion.

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

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

GAUT

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^{^[1]} All further statutory references are to the Penal Code unless otherwise indicated.

Description	In 2005, defendant pled guilty to being an ex-felon in possession of a firearm. (Pen. Code, 12021, subd. (a)(1).)[1] He was granted probation. A petition to revoke his probation was filed in 2006. While this matter was pending, the trial court declared a doubt as to defendants competency and suspended proceedings. ( 1368.) Two alienists were appointed, who examined defendant, and after considering their reports, the trial court declared defendant to be competent and reinstated proceedings. At the conclusion of the contested revocation of probation hearing, the trial court found defendant to be in violation of the terms of his probation that he break no law and not possess drug paraphernalia. It sentenced him to prison for the mid term of two years. Court offered the defendant an opportunity to file a personal supplemental brief, which has been read and considered. Court have now concluded our independent review of the record and find no arguable issues.
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