P. v. Smith

Filed 6/15/10 P. v. Smith CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Randolph Lowell Smith appeals from a judgment and sentence following his no contest plea. His court-appointed counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 to determine whether there are any arguable issues on appeal. Defendant has also filed a supplemental brief. We conclude there are no arguable issues for review, and affirm.

BACKGROUND

The Offense

In October 2008, Smith lived at the home of his mother, Jane Doe, across the street from his sister, S.D. On the morning of the offenses, S.D. encountered her brother at the Glen Ellen Village Fair. He appeared to be drunk, and became belligerent when S.D. confronted him about it. Later that day, S.D. accompanied Jane Doe back to Does house so they could discuss defendants drinking habit with him. Defendant became angry and made a huge scene. Jane Doe asked defendant to move out, and he refused. He yelled and screamed at S.D. and Jane Doe and threatened to burn down Does house while flicking a cigarette lighter in her face.

Defendant went upstairs to his room. When he returned downstairs he appeared to be holding something in his waistband. S.D. thought it might be a weapon because of the way he was standing, and she asked defendant if he had a gun. Defendant stormed upstairs. S.D. heard something very heavy get slammed on a wood surface in defendants room.

Defendant left the house, saying he was going to take care of the situation between S.D.s 18-year old daughter and her older male friend. He crossed the street to S.D.s house and pounded on her daughters door. S.D. followed defendant to her house. As she reached her driveway defendant attempted to drive off on his motorcycle, but he spun out on the gravel and eventually left in an automobile.

Later that day, at Does house, S.D. heard her mother tell a police dispatcher that defendant was on the other phone saying he was armed and dangerous and was going to meet his maker. S.D. and Doe were afraid defendant might have taken weapons from the home of S.D.s estranged husband, R.D. R.D. was out of town at the time and defendant had access to a hidden key to his house.

Within an hour or two S.D. returned to her house and retrieved three telephone messages left by defendant. In the first message he told her to be very afraid; in the second he said she was on [his] hit list and that the dogs are going to be the first to die; in the third he said she could use the message as evidence against him, and called her a bitch.

That night Doe found a loaded ammunition clip belonging to S.D.s husband in defendants room. R.D. had two clips for his gun, which he kept in an upper cabinet in his bedroom. The gun was missing but was found in R.D.s living room. It was loaded. R.D. told police that he had not, and would not have, left the gun there. The person who was taking care of R.D.s house while he was away had never seen the gun until R.Ds daughter found it in the couch.

Defendant called his mother from jail. He told her the only way he was going to get out of going to jail for 25 years is if she didnt testify.

The Legal Proceedings

Defendant was charged with four counts of criminal threats with personal use of a dangerous weapon; three counts of making obscene and threatening telephone calls; unlawful possession of ammunition by a felon; unlawful possession of a firearm by a felon; dissuading a witness; and violation of a criminal protective order. The information alleged two prior strike convictions and two prior prison terms. Defendant pled not guilty to all charges and denied the enhancements and allegations.

Defendant filed a declaration of prejudice under Code of Civil Procedure section 170.6. The motion was denied as untimely. Defendant made two Marsden[1] motions. Both were denied.

Pursuant to a negotiated disposition, defendant changed his plea to no contest to one count of criminal threats and the ammunition and gun charges, and admitted two prior felonies and one prior felony strike allegation. The parties agreed to a stipulated prison term of seven years, four months and agreed that the terms imposed for the ammunition and gun charges would run concurrent to each other. The parties stipulated there was a factual basis for defendants plea and admissions based on the preliminary hearing transcript and police reports. The court advised defendant of his constitutional rights, found he understood the nature of the charges and the consequences of his pleas and admissions, and found they had a factual basis.

Defendant was sentenced to the aggravated term of six years on the criminal threats charge, a consecutive term of one year, four months on the ammunition charge, and a concurrent upper term of six years on the gun charge, for a total prison term of seven years, four months. Defendant was awarded 404 days of presentence credits. The court imposed a $4,200 restitution fine, a parole revocation fine (stayed) in the same amount, victim restitution in an amount to be determined by the victims compensation board, and a $60 court security fee. At the conclusion of the sentencing hearing, defendant stated that he wanted to pull [his] plea. The court advised him to discuss a motion to withdraw his plea with his attorney.

The court granted defendants request for a certificate of probable cause and defendant filed this timely appeal the same day.

DISCUSSION

Counsel has filed a Wende brief, and defendant has filed his own supplemental brief raising five possible claims of error. They are: (1) defendants trial attorney filed an untimely motion pursuant to Code of Civil Procedure section 170.6 to disqualify the judge; (2) his sentence was improperly assessed in light of Penal Code section 1170.1; (3) he was not sentenced in accord with his plea agreement and was not permitted to withdraw his plea when he learned his sentence differed from the agreement; (4) the court should have granted his motions to fire his court-appointed attorney; and (5) his trial and appellate counsel rendered ineffective assistance. None of defendants claims of error has merit.

Defendant fails to show he suffered any prejudice from the courts denial of his motion to disqualify the trial judge. Indeed, our review of the record fails to demonstrate any possible prejudice.

His sentence was not imposed in violation of Penal Code section 1170.1. Defendant seems to be under the impression that section 1170.1 imposes an overall limitation on the length of a prison term the trial court may impose to run consecutively to a principal term of imprisonment. It does not. Section 1170.1 limits a consecutive term to one third of the mid-term sentence for a subordinate offense. But it does not limit the effect of any applicable sentence enhancements. Here, one third of the mid-term for the subordinate offense (eight months) was doubled pursuant to section 1170.12 due to defendants admission of the prior felony. Thus, the court properly imposed a minimum 16-month sentence for defendants possession of ammunition that is to run consecutively to defendants six-year principal term for threatening great bodily injury.

While defendant may not have been sentenced exactly as anticipated at the time he entered his plea, defendants sentence comports with his plea agreement. The plea agreement and the courts imposed sentence each total an aggregate of seven years, four months in state prison. Although the court may have arrived at total prison time in a slightly different way than defendant expected, defendant received the total prison time he bargained for and is not prejudiced by the differences.

The trial court gave thorough consideration to defendants Marsden motions to discharge his court-appointed counsel, and the record supports its rulings to deny those motions. Our review of the record also fails to disclose any basis upon which we could conclude defendants trial or appellate counsel were ineffective.

We find no arguable issues on appeal. There are no legal issues that require further briefing.

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Pollak, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1]People v. Marsden (1970) 2 Cal.3d 118.