P. v. Ervin
Filed 4/2/13 P. v. Ervin CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANK LEROY ERVIN,
Defendant and Appellant.
B241960
(Los Angeles
County
Super. Ct.
No. YA081235)
THE COURT:
Appellant
Frank Leroy Ervin (Ervin) appeals from the judgment entered following his
conviction upon a plea of nolo contendere.
of the Case
An information filed November 23, 2011, charged Ervin
with one count of vehicle taking (Veh.
Code, § 10851, subd. (a)) and one count of evading
an officer (Veh. Code,
§ 2800.2, subd. (a)) and with allegations of five strike priors. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i).) Ervin waived his
himself. On November 29, 2011, he pleaded not guilty to both
counts and denied the allegations.
Ervin then filed two written
ground that the search and his arrest were effected without a warrant. Evidence was taken; the motions were argued;
and the trial court denied the motions, concluding that there was probable
cause for Ervin’s detention and arrest.
The parties stipulated to amend the
information to add count 3, charging Ervin with violation of Penal Code section
496d, receiving a stolen vehicle.
Pursuant to a plea agreement, the prosecution dismissed all but one of
the alleged strike priors; Ervin pleaded nolo contendere to count 3, and was
sentenced on June 7, 2012,
to an agreed mid-term of two years, doubled to four years for one strike prior,
with a waiver of presentence custody
credits. Notice of appeal was filed June 7, 2012.
Factual Background
At around
3:00 p.m. on May 26, 2011, Los Angeles Sheriff’s Deputies Matthew Wheatcroft
and Shaun Kennedy were on patrol at 112th Street and Vermont Avenue when they
passed by a Hyundai vehicle driven by Ervin.
As part of his normal patrol routine, Deputy Kennedy ran a random
license plate check on a Hyundai vehicle, which came back showing the plates
were lost or stolen and belonged to a 2011 Ford vehicle. Stolen license plates affixed to another
vehicle are an indication that that vehicle may be stolen. The officers made a U-turn to follow the
Hyundai and confirmed with dispatch that the plates were lost or stolen. Gloria Guzman testified that the subject
plates were for her 2011 Ford; she reported them stolen on April 25, 2011.
Deputy Wheatcroft
followed the Hyundai southbound on Vermont Avenue
and activated his forward-facing red lights.
When the Hyundai did not pull over, Deputy Wheatcroft hit the siren a
few times. The deputies followed the
Hyundai eastbound on Imperial Highway
and the Hyundai moved into the center passing lane and sped up. Deputy Wheatcroft activated his full rotating
lights and siren, and the Hyundai sped away at speeds unsafe for traffic
conditions. The deputies requested
assistance from additional units and radioed a description of the driver, a
Black male, age 30 to 40, with his hair in braids or corn rows.
An air
support unit joined in the pursuit and established “eyes on†the Hyundai. The ground pursuit was called off due to the
Hyundai’s disregard for public safety, but the air unit maintained surveillance
of the Hyundai. The vehicle pulled into
a driveway and an unknown number of individuals got out. After about one minute, the Hyundai reversed
out of the driveway at high speed and took off again. Soon afterwards, the Hyundai collided with a
small pickup truck and came to a stop at Hatchway
Street and Aranbe Avenue. The pilot of the air unit observed one
individual, a male with braids, exit the passenger door and run westbound on Hatchway
Street. He
did not lose sight of the vehicle at any time after the collision. The driver of the pickup truck, a male
Hispanic, saw the driver of the Hyundai, a light-skinned Black male, exit the
passenger door of the Hyundai and take off running. Only one person exited the Hyundai at the
scene of the crash.
Assisting
units arrived at the scene of the collision and bystanders directed them to the
rear of a residence, saying, “‘He ran this way.’†A Black male wearing a tan shirt was observed
running through a rear yard. The
bystanders reported that after the collision, a Black male jumped out of the
Hyundai and ran through the yard.
Deputy
Carlos Mejia arrived at the scene of the traffic collision and drove his patrol
car slowly through the area, looking for a subject matching the description
broadcast over the radio, a Black male with braided hair and a brown
shirt. Deputy Mejia observed Ervin
walking about one block south from where the suspect was last seen. When Deputy Mejia pulled up next to Ervin,
Ervin immediately put his hands in the air.
Deputy Mejia placed Ervin under arrest.
Another patrol unit transported Ervin back to the scene of the
automobile collision, where Deputies Wheatcroft and Kennedy identified him as
the driver of the Hyundai. Deputy Wheatcroft
positively identified Ervin as the driver of the Hyundai.
Law
enforcement radio traffic contained a statement that someone reported that a
male Hispanic bailed out of the driver’s side of the Hyundai.
Counsel was
appointed to represent Ervin in connection with this appeal. After examination of the record, counsel
filed an “Opening Brief†in which no arguable issues were raised. On January
2, 2013, we advised Ervin that he had 30 days within which to
personally submit any contentions or issues for us to consider. No response has been received to date.
After
reviewing the entire record, we conclude that it provides a factual basis to
support the conviction, which was entered upon a plea of nolo contendere. Regarding the trial court’s order denying
Ervin’s motion to suppress, we find no error.
(People v. Superior Court (
1011.) The trial court heard the
evidence and determined that the police officers rightly ran the license plate
check without probable cause. Once the
license plate check came back as a “hit,†namely as the vehicle having stolen
plates, the police officers then had probable cause to stop that vehicle. And, once Deputy Wheatcroft and Deputy
Kennedy identified Ervin as the driver, there was probable cause to arrest
him.
We are
satisfied that Ervin’s attorney has fully complied with her responsibilities
and that no arguable issues
exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The
judgment is affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
name="_ftn1" title="">* BOREN,
P. J., Ashmann-Gerst, J., Chavez, J.
