P. v. Graham

Filed 8/13/09 P. v. Graham CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffatt II, Armando Rodriguez,and Jennifer R. S. Detjen, Judges.

Brian A. Wright, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Leon Graham pleaded no contest to possession of cocaine base and was placed on probation pursuant to a negotiated disposition. He violated probation based upon his misdemeanor conviction for resisting arrest and the court imposed a six-year prison term consistent with the terms of the negotiated disposition. On appeal, appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 15, 2005, Madera Police Officer Chavez observed a vehicle parked in front of a market.^[1] The vehicles front doors were open and the stereo was playing loudly. Chavez contacted the occupants and determined Deshonta Cunningham was the driver and appellant was the passenger. Chavez also determined Cunningham was on parole. Both Cunningham and appellant stepped out of the car. Appellant was holding a black jacket and a pack of cigarettes. Officer Chavez directed appellant to remain in the vehicle and appellant complied. Cunningham agreed to a search of the vehicle.

After other officers arrived to assist in the search, appellant was asked to get out of the vehicle. Appellant stepped out of the car and he was again holding the jacket and pack of cigarettes. Appellant was instructed to leave his belongings in the car but he failed to comply. Officer Chavez feared appellant might be concealing a weapon, and again directed him to leave his belongings in the car. Appellant refused, became argumentative, and began moving his left hand behind his back.

Chavez grabbed appellant by his right forearm because he did not comply. Appellant began to resist. Chavez placed appellant in an arm bar control hold and appellant continued to resist. Chavez conducted a leg sweep and took [appellant] to the ground, and he was arrested and placed in handcuffs. The officers searched the cigarette pack which appellant had been holding, and it contained four plastic baggies of cocaine.

Appellant was charged with count 1, possession of crack cocaine for sale (Health & Saf. Code,^[2] 11351), count 2, possession of crack cocaine ( 11350, subd. (a)), and count 3, misdemeanor resisting arrest (Pen. Code,  148, subd. (a)(1)).

Suppression motion

Appellant filed a motion to suppress (Pen. Code,  1538.5) and argued he was improperly detained and ordered to leave his belongings in the car, Officer Chavez lacked any articulable facts to restrain and arrest him, and the subsequent search of the cigarette package was illegal.

The prosecution filed opposition and argued Officer Chavezs actions were reasonable because the driver was on parole, the vehicle was subject to being searched, and Chavez properly asked appellant to step out of the vehicle and leave his possessions in the car for purposes of officer safety.

The prosecution further argued appellant was properly arrested and searched incident to that arrest, based upon his actions when he was ordered to step out of the car and leave his belongings inside. According to the prosecution, appellant held the jacket in such a way that it was difficult for Officer Chavez to determine if he had a weapon concealed inside the jacket. [Appellant] stopped moving, but did not release the items from his hand, and Chavez noticed appellant had let go of the jacket and had started moving his left hand behind his back. Officer Chavez was unable to see what [appellant] was doing with his left hand. Officer Chavez grabbed [appellants] right forearm. [Appellant] immediately began to pull away from Officer Chavez. Officer Chavez ordered [appellant] to stop resisting and ordered him to place his hands behind his back. A struggle ensued, after which appellant was arrested. The prosecution argued appellants conduct indicated he possessed the black jacket and cigarettes, and those items were properly searched incident to his arrest.

On June 17, 2005, the court conducted both the preliminary hearing and an evidentiary hearing on appellants suppression motion. The instant appellate record does not contain a reporters transcript of this hearing. According to the minute order, the court found appellants detention was valid, the search was legitimate, it denied appellants motion to dismiss, and it held appellant to answer.

Plea proceedings

On June 23, 2005, an information was filed which charged appellant with count 1, possession of cocaine base for sale, count 2, possession of cocaine base, and count 3, misdemeanor resisting arrest, with a prior narcotics conviction enhancement as to count 1 ( 11370.2), and three prior prison term enhancements as to counts 1 and 2 (Pen. Code,  667.5, subd. (b)). Appellant pleaded not guilty, the matter was set for trial, and it was continued for nearly one year.

On July 6, 2006, appellant entered into a negotiated disposition, pleaded no contest to count 2, possession of cocaine base, and admitted the three prior prison term enhancements, for a maximum possible sentence of six years. Defense counsel requested the court to transfer the matter to Sacramento County, appellants legal residence.

On August 17, 2006, the court imposed an aggregate sentence of six years, based on the upper term of three years for count 2, and 3 one-year terms for the enhancements. The court suspended execution of the sentence and placed appellant on probation pursuant to Proposition 36 (Pen. Code,  1210.1), subject to various terms and conditions, including to obey all laws. The court ordered the case transferred to the county of appellants legal residence and dismissed the remaining charges and enhancement.

There is no indication in the record that appellant filed a notice of appeal after he was placed on probation.

Probation violations

On April 25, 2007, a petition was filed in Madera County which alleged appellant committed a non-drug-related probation violation, based upon his failure to report to the probation officer within 48 hours of being sentenced, moving from his reported address without notifying the probation officer, and failing to obey all laws by committing two counts of resisting arrest (Pen. Code,  148, subd. (a)(1)). On the same day, appellant failed to appear for the probation revocation hearing.

On April 15, 2008, another petition was filed in Madera County which alleged a non-drug-related probation violation, based upon appellants failure to appear for a scheduled appointment with the probation officer in March 2008, and his conviction on July 12, 2007, for resisting arrest in Madera County. Appellants probation was summarily revoked and a bench warrant issued.

Probation violation hearing

On September 26, 2008, the court conducted a contested probation revocation hearing and took judicial notice of appellants plea and probation in the 2006 case. A probation officer testified that at the time of appellants plea in the prior case, the court ordered transfer of the case to appellants legal residence, Sacramento County, but there was no evidence the case was actually transferred. The court also received evidence that on July 12, 2007, appellant was convicted of misdemeanor resisting arrest in Madera County.

Madera Police Officer Jason Pritchard testified about the incident which resulted in appellants misdemeanor conviction for resisting arrest. On the night of November 14, 2006, Pritchard was on patrol in a marked vehicle when he saw appellant riding a bicycle on the street without a headlight, a violation of the Vehicle Code. Pritchard drove alongside appellant, shined the patrol cars spotlight on him, rolled down the windows of his patrol car, and directed appellant to stop. Appellant asked why. Pritchard explained the reason and again directed appellant to stop. Appellant said, I live right here.

Pritchard testified appellant stayed on the bicycle, turned off the street, and rode behind a residence. Pritchard parked his patrol car, repeatedly said, Police. Stop, and followed appellant on foot behind the residence. Appellant jumped off the bike and ran to the back of the house. Pritchard continued to identify himself, ordered appellant to stop, and ran after him. Appellant did not respond and continued to run.

Appellant ran to the front of the residence, turned and faced Pritchard, and placed both hands in his pockets. Pritchard believed appellant was attempting to retrieve a weapon, and he used a leg sweep to take appellant to the ground. Pritchard ordered appellant to get on his stomach, but appellant refused to comply and repeatedly tried to stand up. Pritchard tried to place his weight on top of appellant to keep him down.

Pritchard testified events happened very fast and appellant screamed for help. Four or five people came out of the house and surrounded Pritchard. Appellant asked them for help and Pritchard ordered them to step back. The people failed to comply with Pritchards order and told him to leave appellant alone. Pritchard reached for his radio and called for assistance. Additional neighbors arrived in the area, surrounded Pritchard, and told him to leave appellant alone. The backup officers arrived and Pritchard needed help from two other officers to restrain appellant. Appellant was finally placed in handcuffs. Pritchard testified five to seven minutes passed from when he left the patrol car to when appellant was restrained.

Appellant testified at the probation revocation hearing and complained his probation case was never transferred to his legal residence in Sacramento County, contrary to the courts orders when he entered his plea. He repeatedly tried to contact a probation officer in Sacramento, and he never had an opportunity to participate in any Proposition 36 programs. As for the bicycle incident, appellant testified he had returned to Madera to visit his ill mother. Appellant did not know it was against the law to ride a bicycle at night without a headlight. Appellant conceded that he failed to stop and told Pritchard that he lived at the next house. Appellant denied that he ran away or resisted Pritchard, and testified that Pritchard threw him to the ground and choked him. Appellant admitted he pleaded guilty to misdemeanor resisting arrest based on this incident.

At the conclusion of the hearing, the court rejected the allegation that appellant failed to report to the probation officer, but found appellant violated probation based on his admission that he pleaded guilty to resisting arrest, and the conviction occurred after he was placed on probation in the underlying case.

Sentencing hearing and Marsden motion

On October 20, 2008, the sentencing hearing was scheduled. Appellant complained that he never had the chance to participate in any Proposition 36 programs because the case was never transferred to Sacramento. Appellant then claimed that he actually enrolled in a Proposition 36 program and complied with the terms of his probation. The court continued the matter for defense counsel to clarify the record.

On December 15, 2008, the court reconvened the sentencing hearing, and appellant asked to withdraw his plea which he entered in the underlying case in 2006, because he was supposed to participate in a Proposition 36 program but his case was never transferred to Sacramento. The court replied that appellants probation was revoked for his failure to obey all laws, based upon his conviction for resisting arrest, which was a non-drug-related violation. The court denied probation and reimposed the six-year sentence in the underlying case.

Appellant presented the court with a handwritten motion to withdraw his guilty plea in the 2006 case and discharge appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The court cleared the courtroom and conducted a hearing on the motion.

At the Marsden hearing, appellant said he repeatedly asked his current attorney to explain how they been doing me on this case but his attorney said there was nothing to do. Appellant complained the district attorney offered him a Proposition 36 deal but took it back, and he wanted an attorney who would fight for him. Appellant said he repeatedly reported to the probation office in Sacramento but there was no paperwork for him, and all of a sudden he was being sent to prison for six years.

The court explained that appellants probationary terms included the requirement to obey all laws, he violated that term when he committed the new offense, and that violation had nothing to do with the actions of the probation department, the prosecutors office, or his defense counsel. The court further explained that it was not required to reinstate appellants Proposition 36 probation because his violation was based on a non-drug-related reason. The court found defense counsel competently represented appellant, there were no grounds to withdraw his plea, and denied the Marsden motion. Thereafter, the court advised appellant of his appeal rights.

On December 16, 2008, appellant filed a timely notice of appeal from the judgment entered the previous day.

DISCUSSION

Appellants appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) By letter dated May 8, 2009, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so.

Our independent review discloses no reasonably arguable appellate issues. [A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsels professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Dawson, J. and Kane, J.

Retired Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

^[1]Given appellants plea and the limited nature of the instant record, the facts of the underlying case are taken from the officers warrantless arrest declaration and the probation report.

^[2]All further statutory citations are to the Health and Safety Code unless otherwise indicated.