P. v. Merryman
Filed 12/27/12 P. v. Merryman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 PEOPLE,
Plaintiff and Respondent,
v.
BOB DEAN
MERRYMAN,
Defendant and Appellant.
F064223
(Fresno Super. Ct. No. F11901424)
THE COURT
APPEAL
from a judgment of the Superior Court of
County. Timothy Kams, Judge.
Allison
H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Office
of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
On
November 17, 2011, a Fresno County jury returned verdicts finding appellant Bob
Dean Merryman guilty in count 2 of transportation
of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); in
count 3 of possession of methamphetamine (Health & Saf. Code, § 11377,
subd. (a)); and in count 4 of driving with a suspended license (Veh. Code,
§ 14601.1). Appellant admitted that
he had sustained a prior strike conviction (Pen. Code, §§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)) and four prior prison terms (Health &
Saf. Code, §§11370.2, subd. (c), Pen. Code, § 667.5, subd. (b)).
On December 21,
2011, the court denied appellant’s request to strike the prior strike
conviction (Pen. Code, § 1385), further denied probation, and imposed a
state prison sentence of 21 years. The
court imposed the doubled middle term of six years on count 2, a consecutive
term of 15 years on the prior prison terms, a stayed sentence on count 3 (Pen.
Code, § 654), and a term of 365 days in county jail on count 4. The court imposed a $5,400 restitution fine
(Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine
pending successful completion of parole (Pen. Code, § 1202.45), and
awarded 427 days of custody credits.
Appellant filed
a timely notice of appeal.
STATEMENT OF FACTS
On the evening
of March 11, 2011, Clovis Police Officer Mark Bradford observed a white 1993
Dodge Dakota pickup truck traveling southbound on Clovis Avenue near the Clovis
Rodeo Grounds. Officer Bradford noticed
the rear license plate of the truck was not illuminated as required by
law. Bradford effected a traffic stop
and discovered that appellant, the driver, was operating the vehicle with a
suspended license, a misdemeanor offense.
Clovis Police
Officer Molly Marcus arrived at the scene to assist Bradford. She asked appellant to step outside of his
pickup truck and detained him on the misdemeanor. After Officer Marcus detained appellant,
Bradford conducted an impound search of the cab of the vehicle, looked inside a
cigarette carton, and found two Baggies.
One Baggie held six individual Baggies and contained a total of 10.3
grams of methamphetamine. The second
Baggie contained 6.9 grams of methamphetamine.
Bradford did not find any narcotics paraphernalia, weapons, or a cell
phone. Appellant did have $45 on his
person.
Bradford
testified that Officer Steve Cleaver arrived at the scene and determined there
was enough contraband to detain appellant for possession of methamphetamine for
sale. At that point, the officers placed
appellant under arrest. Cleaver
explained at trial, “[T]he quantities in each one of the separate bindles,
which is representative of a teener [one-sixteenth of an ounce or one and
one-half grams], you have six separate packages in that manner and then you
have a separate larger package which is typically used for a different
purpose.â€
On November 17,
2011, after the presentation of all evidence, the court read the following
stipulation to the jurors: “You must
treat this as a proven fact or as true.
Stipulation by the Parties: The
Parties stipulate to the following: On
March 11, 2011, the Defendant, Bob Merryman, was in possession of a substance
alleged to be methamphetamine that was seized by Officer Mark Bradford of the
Clovis Police Department. Bob Merryman
was aware that he possessed this substance and he believed it was
methamphetamine, a controlled substance.â€
Merryman’s
counsel has filed a brief which summarizes the facts, with citations to the
record. The brief raises no issues and
counsel asks this court to independently
review the record. (
436.)
Merryman has
responded to this court’s invitation to submit additional briefing by filing
multiple letter briefs. He claims that
he was offered a deal of six years in prison but he turned that down after
being told he would be admitted to a drug rehabilitation program. He also claims he was misinformed as to the
maximum sentence he could receive. He
states he would not have gone to trial and would have accepted the six year
deal. In addition, he argues his medical
condition precluded him from understanding the proceedings or discussions with
his attorney.
We
will briefly address appellant’s contentions.
On November 15, 2011, the court explained to appellant that it was going
to look into a drug treatment program, but that the court was only exploring a
possible settlement. The court then indicated that it appeared that appellant
would not be eligible for a commitment to a local treatment program. At sentencing, defense counsel asked the
court to show leniency and grant appellant “one chance†on a drug
rehabilitation program with “enough supervision on probation.†The court explained that appellant was
statutorily ineligible for probation and, even if appellant were somehow
eligible for probation, such a request from the defense would be denied because
“[h]is record … spans five decades and is replete with substantive crimes as
well as parole violations.â€
A.
Analysis
Appellant’s
contention that he was extended plea offers and drug program arrangements is
not supported by the record. The record reflects that drug programs were discussed;
these discussions were preliminary discussions and the court so indicated to
appellant. The record does not reflect
that appellant was ever extended a plea offer or offered a drug rehabilitation
program, thus his decision to go to trial could not have been influenced by
offers that were not made. In addition,
there is nothing in the record to support his assertion that his counsel
misinformed him regarding his maximum sentence.
“There is no
evidence in the record before us to support defendant’s claim. Under well-established appellate rules, this
court may not consider alleged facts which are wholly outside the record on
appeal.†(People v. Thurmond (1985) 175 Cal.App.3d 865, 874.) The record on appeal in this case does not
reflect the plea agreements and sentencing alternatives asserted by appellant;
it also does not reflect that his counsel misinformed him of his possible
maximum sentence. Appellant’s
contentions are therefore rejected.
Following
independent review of the record, we have concluded that no other reasonably
The
judgment is affirmed.
Franson, J.
stipulation to preclude the prosecution from presenting prejudicial evidence in
the case-in-chief regarding appellant’s prior felony convictions and to show
knowledge on the appellant’s part.
