P. v. Hammond

Filed 2/28/07 P. v. Hammond CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Introduction

Appellant Delvon Jajuan Hammond (appellant) appeals from a final judgment disposing of all issues between the parties arising out of the three separate superior court cases referenced above. Appellants counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this courts attention. No supplemental brief has been filed by appellant personally.

Procedural Background

A felony complaint was filed in case number FCR187202 (Case 202) by the Solano County District Attorneys Office on November 9, 2000, charging appellant with one count of unlawful driving or taking of a vehicle (Veh. Code,  10851, subd. (a)). While Case 202 was pending, a new complaint was filed by the Solano County District Attorney in case number FCR187854 (Case 854) charging appellant with one count of unlawful driving or taking of a vehicle (Veh. Code,  10851, subd. (a)), and one count of receiving stolen property (Pen. Code,  496, subd. (a)). It was also alleged that at the time of these offenses, appellant was on bail in Case 202, within the meaning of Penal Code section 12022.1.

On March 21, 2001, appellant pleaded no contest to the violation of Vehicle Code section 10851, subdivision (a) alleged in Case 202, and no contest to the receiving stolen property count in Case 854. He also admitted the truth of the out-on bail enhancement alleged in Case 854. He acknowledged that in pleading no contest, he could be sentenced up to five years in state prison in Case 854, and three years in state prison in Case 202. However, in return for his pleas, he was promised no immediate state prison time. Instead, he would be placed on probation and sentenced to serve some jail time. In pleading no contest in both cases, appellant was admonished concerning the constitutional rights he was waiving by doing so, and he voluntarily and knowingly waived those rights. Appellant was granted probation, with conditions, in accordance with his pleas on April 19, 2001, including the condition that he agree to serve 160 days in county jail.

Over the next several years, appellant had continued contact with the criminal justice system, particularly involving several motions to revoke his probation because of conduct alleged to violate the terms of his probation. Probation was continued or reinstated on each such occasion. On one of these occasions, appellants probation period was ordered extended by one year as a condition for reinstatement.

On December 15, 2004, an information was filed in case number FCR219820 (Case 820) by the Solano County District Attorneys Office charging appellant with one count of committing a lewd act on a child under the age of 14 (Pen. Code,  288, subd. (a)), and a misdemeanor count of trespass (Pen. Code,  602, subd. (t)). Pending disposition of Case 802, probation was revoked in the two earlier cases. Appellant pleaded not guilty to the charges in Case 802, and a jury trial was initially set to commence on January 5, 2005. Trial was thereafter continued until February 28, 2005.[1]

A motion to set aside the information was made by appellant on the ground that there was no probable cause to hold him for trial on the lewd act charge. That motion was denied on February 15. Written in limine motions were made by the defense, including one to suppress the identification of appellant by the alleged victim to the lewd act charge, and a motion to sever the two counts for trial. The prosecution made a motion to admit evidence of appellants prior convictions in the event he chose to testify at the trial.

After hearing testimony from one witness as to the suppression motion, and the arguments of counsel, the trial court denied both of appellants motions on the morning of the first day of trial. The prosecutions motion to admit appellants prior was granted in part as to the prior conviction for receiving stolen property. The motion relating to appellants prior conviction for a misdemeanor violation of Penal Code section 273.5 was deferred until the conclusion of the prosecution case. A motion to amend count 2 of the information to change the misdemeanor trespass charge from an alleged violation of Penal Code section 602, subdivision (t), to a violation of section 602, subdivision (k).

Trial commenced on February 28, and continued on March 1 and 4. At the conclusion of the prosecutions case, appellant waived his right to testify. The case was submitted to the jury for a decision on March 4. That afternoon the jury delivered its verdict of guilty as to both counts.

The evidence at trial showed that appellant went onto the property of the North Bay Medical Center on November 8, 2004. He was followed from the premises and was confronted across the street by the medical centers security guard, Brian Berggren, and police officers who had been called. He was issued a citation and told not to return to the medical center property. The next day, appellant went into the centers waiting room where the 12-year-old victim was sitting waiting for her sister who was being treated. Appellant approached the victim, removed her sandal, pulled down his pants, and proceeded to rub the victims bare foot against his penis. The victim screamed two times. Two nurses responded to the screams. They asked appellant what he was doing there, but appellant did not respond. Instead, he simply walked away. The nurses were not able to identify the assailant. Appellant was identified by the victim while he was being detained by the investigating officers near the medical center.

Sentencing was held on November 8. Prior to the hearing, a written statement in mitigation was filed on behalf of appellant. The statement requested that appellant receive no more than 5 years 8 months in state prison. The probation department recommended a state prison sentence of 11 years 4 months. Counsel were afforded an opportunity to address sentencing also at the commencement of the hearing.

The court denied probation, either for the two prior cases in which probation had been revoked, or for a new term. Instead, the court imposed: (a) the mid-term of six years state prison for the conviction for the lewd act, (b) a consecutive term of eight months (one-third the mid-term) for the receiving stolen property conviction in Case 854, and a consecutive term of eight months (one-third the mid-term) for the vehicle theft conviction in Case 202. The court also imposed a two-year state prison term for the out-on-bail enhancement found true in Case 854, but stayed that sentence in the interests of justice because of appellants significant cognitive limitations. As to the trespassing conviction in Case 802, the court gave appellant credit for time already served. Therefore, appellant received a total aggregate sentence of seven years four months in state prison, less credits for time served.

Conclusions Based Upon Independent Record Review

Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal.

The entire trial record has been reviewed, and we conclude that appellants conviction and true finding as to the enhancement were supported by substantial evidence. No potentially prejudicial error occurred during the course of the trial.

We also discern no error in the sentencing. The refusal to grant probation, and the sentencing choices made by the trial court were consistent with applicable law, supported by substantial evidence, and were well within the discretion of the trial court. The restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by counsel.

DISPOSITION

the judgment is affirmed.

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Ruvolo, P. J.

We concur:

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Reardon, J.

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Sepulveda, J.

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[1] All further dates are in the calendar year 2005 unless otherwise indicated.