P. v. Smith
Filed 2/9/09 P. v. Smith CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. MALACHI SMITH, Defendant and Appellant. | D053097 (Super. Ct. No. SCD210118) |
APPEAL from a judgment of the Superior Court of San Diego County, Bradford L. Andrews, Judge. Affirmed.
Malachi Smith pleaded guilty to unlawfully driving and taking a vehicle without the consent of the owner (Veh. Code, 10851, subd. (a)), and receiving a stolen vehicle (Pen. Code,[1] 496, subd. (d)). Smith also admitted he had a prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)), and had served three prior prison terms within the meaning of section 667.5, subdivision (b). The trial court stipulated that Smith would receive a 32-month prison term. The court, which had earlier denied a motion to dismiss for violation of Smith's right to a speedy trial, agreed to award him custody credits for one of the two periods in which he was incarcerated during the 14 months between his offenses and his arrest in addition to the custody credits earned after his arrest.
After denying Smith's motion to withdraw his guilty pleas, the court sentenced Smith to the low term of 16 months on the Vehicle Code section 10851, subdivision (a) count and doubled it under the Three Strikes Law for a total of 32 months. The court stayed an identical sentence on the section 496, subdivision (d) count under section 654 and dismissed the three prior prison term allegations. The court also awarded Smith a total of 348 custody credits: 155 after his arrest in this case; 77 for the period from September 19, 2007 to December 4, 2007, when he was incarcerated for a parole violation; and 116 good time custody credits under section 4019.
The court denied Smith's request for a certificate of probable cause.
FACTUAL AND PROCEDURAL BACKGROUND
At 11:30 p.m. on September 8, 2006, Jonathan Redding parked his 1999 Audi A4 Quattro at a friend's house. When he left the friend's house at 2:00 the next morning, the car was missing. Redding, who had left one of his sets of keys in the Audi, reported the theft to police on September 9.
On September 26 an undercover police officer assigned to the Regional Auto Theft Task Force met with a middleman, who had offered to arrange the sale of Redding's stolen Audi. The undercover officer paid the middleman $300 for the Audi and an additional $100 for brokering the deal. The middleman gave $300 to Smith, who had an ignition key for the car.
Police did not immediately arrest Smith because they did not want to compromise the task force's continuing investigation of auto thefts in the region.
Between December 8, 2006, and April 26, 2007, and between September 19, 2007, and December 4, 2007, Smith was incarcerated for parole violations.
In May 2007 the auto theft task force completed its investigation. In October 2007 the grand jury handed down numerous indictments.[2]
On November 14, 2007, the district attorney filed a felony complaint charging Smith with unlawfully driving a vehicle without the owner's consent and receiving a stolen vehicle.
On December 11, 2007, police arrested Smith for a parole violation and, two days later, he was arraigned on the auto theft and receiving a stolen vehicle counts.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether Smith may appeal the denial of his speedy trial motion; (2) whether Smith may appeal the trial court's denial of his motion to withdraw his guilty plea; and (3) whether Smith was properly advised before he pleaded guilty and whether his sentence was lawful.
We granted Smith permission to file a brief on his own behalf. He has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Smith on this appeal.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
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[1] Statutory references are to Penal Code unless otherwise specified.
[2] Smith was not among the individuals who were indicted because Redding had moved to the East Coast. A decision was made not to fly Redding back twice to testify both before the grand jury and at the trial. Instead, the prosecution proceeded with a preliminary hearing and relied on Proposition 115 testimony from police officers at that hearing.
