P. v. King
Filed 10/11/12 P. v. King CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN W. KING,
Defendant and Appellant.
B237538
(Los Angeles
County
Super. Ct.
No. BA387942)
APPEAL from
a judgment of the Superior Court
of Los Angeles
County. Dennis J.
Landin, Judge. Affirmed.
Richard L. Fitzer, under
appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Respondent.
__________________________
Defendant Kevin W. King appeals
from his conviction following a plea of guilty to possession of a controlled substance for sale
in violation of Health and Safety Code section 11351.5. Following our independent review of the record
pursuant to People v. Wende (1979)
25 Cal.3d 436, 441 (Wende), we
affirm.
We glean the following facts from
the Reporter’s Transcript of the preliminary hearing on September 1, 2011.
At about 5:20 p.m. on August 18, 2011, a police
officer observed defendant and another man in what appeared to be a
hand-to-hand narcotics transaction. Both
men were detained. No drugs were found
on the person or in the immediate area of the other man. But police recovered a small plastic bindle
containing several pieces of an off-white solid substance and $14 from
defendant’s left sock; no drug-use paraphernalia was found in defendant’s
possession. The bindle was later determined
to contain .95 gross grams of cocaine base.
Based on these facts, the testifying police officer concluded that
defendant possessed the cocaine base for sale.
PROCEDURAL
BACKGROUND
At his arraignment on August 22, 2011, defendant signed a
written waiver of his right to appointed counsel. Defendant continued to represent himself at
the preliminary hearing on September 1, at which his Penal Code
section 1538.5 motion to suppress all evidence found as a result of an
illegal detention, as well as his motion to exclude the evidence for failure to
show chain of custody were heard and denied.[1]
Although defendant testified at the
preliminary hearing, he was not re-advised of his right to counsel as required
by section 866.5 and McCarthy v.
Superior Court (1958) 162 Cal.App.2d 755. Defendant denied possessing any cocaine base
and maintained that the bindle of cocaine base had not been in defendant’s
possession. Defendant heard a woman in
the crowd say that the officer took the bindle out of his own pocket. Defendant was held to answer. By information filed on September 15, 2011, defendant was charged
with possession of cocaine base for sale.
(Health & Saf. Code, § 11351.5.) The information was later amended to add
additional section 667.5, subdivision (b) prior conviction allegations.
On September 16, 2011, defendant’s motion to dismiss for
failure of the police to get identifying information of the woman in the crowd
was denied. Two weeks later, his
section 995 motion to dismiss on the grounds that he had not been advised
of the right to counsel at the preliminary hearing as required by
section 866.5 and McCarthy, supra,
were denied, based upon the trial court’s finding that section 866.5 was
satisfied by the fact that defendant was told at the preliminary hearing: (1)
“You’ve been told that the court considers [representing yourself] a bad
idea . . . .”; and (2)
“Can I caution you before you testify that anything you say in
connection with this hearing as the potential to result in your incrimination,
and that taking the stand should be done with great caution. It is often discouraged by attorneys.” Defendant’s motion to exclude evidence as a
sanction for failure to hold a timely probable cause hearing (§ 825;
500 U.S.
44, 57; Gerstein v. Pugh (1975)
420 U.S.
103, 125) was also denied. At a pretrial
conference on October 17, 2011,
defendant reaffirmed his desire to continue representing himself and executed
another formal waiver of his right to
appointed counsel. The trial court
declined to reconsider defendant’s section 995/866.5 motion. On October 21, defendant’s renewed
section 1538.5 motion to suppress and section 995/866.5 motion to
dismiss were once again denied.
On October 31, 2011, defendant pled guilty to possession of
cocaine base for sale. He was sentenced
to the four year midterm in county jail.
Execution of sentence was suspended and defendant was placed on three
years formal probation. He timely
appealed.
We
appointed counsel to represent the
defendant on appeal. After examination
of the record, appointed counsel filed an opening brief which contained an
acknowledgment that she had been unable to find any arguable issues and requested that we
independently review the record pursuant to Wende,
supra, 25 Cal.3d 436. On July 3, 2012, we advised
defendant that he had 30 days within which to personally submit any contentions
or issues which he wished us to consider.
On August 3, 2012, appellant filed a document captioned: “Response to Court Letter Dated 7.3.12.” Attached to the caption page was a form
Petition for Writ of Habeas Corpus with the present appeal case number
handwritten by appellant.[2] Defendant contends the trial court committed
two errors warranting reversal: (1)
denial of his motion to dismiss for failure to provide a timely probable cause
determination and (2) denial of his section 995/866.5 motion. Neither contention has merit.
Probable Cause Hearing
Generally,
a person arrested without a warrant is entitled to a probable cause hearing
within 48 hours of the warrantless arrest.
(§ 825; People v. Lewis (2008)
43 Cal.4th 415, 444, citing Gerstein
v. Pugh (1975) 420 U.S.
103, 126.) But section 825 is not
applicable to a parolee placed on a parole hold, because he or she is deemed
not to be separately detained prior to arraignment. (People
v. Gordon (1978) 84 Cal.App.3d 913, 922-923.) Here, defendant was on parole and had an ongoing
probation violation case when he was arrested without a warrant at about
6:00 p.m. on August 18, 2011.
Under these circumstances, appellant did not have a right to a probable
cause hearing within 48 hours of his warrantless arrest.
Even assuming for the sake of
argument that it was error to not re-advise appellant of his right to counsel
at the preliminary hearing, we find
any such error was harmless. (
27 Cal.3d 519, 530 [on direct appeal from the judgment, denial of right to
counsel is subject to harmless error analysis, i.e. whether the defendant was
deprived of a fair trial or otherwise suffered prejudice as a result of the
error ].) Here, defendant has not shown
he suffered any prejudice resulting from the failure to give the section 866.5
advisement at the preliminary hearing.
Defendant was advised of his constitutional
rights and waived those rights at his arraignment and several times
thereafter, including when he plead guilty.
Under these circumstances, the fact that defendant was not given formal
advisements at the preliminary hearing – although the subject was discussed at
the hearing – did not deprive defendant of a fair trial.
We have examined the entire record
and are satisfied that appointed counsel has fully complied with her
responsibilities and that no arguable
issues exist. (Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
GRIMES,
J.
[1] All
future undesignated statutory references are to the Penal Code.
[2] We
do not treat this attachment as a separate writ of habeas corpus and make no
ruling other than in the present appeal.
