P. v. Weathers
Filed 6/14/13 P. v. Weathers CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff
and Respondent,
v.
LARREL MARTIN WEATHERS,
Defendant and Appellant.
C072350
(Super. Ct. No. 11F06396)
A jury
found defendant Larrel Martin Weathers guilty of
felon. (Pen. Code, § 12021,
subd.(a)(1).)
title="">[1] The trial court found that he had a prior
serious felony conviction (§§ 667, subds. (b)-(i), 1170.12) and had served a
prior prison term (§ 667.5, subd. (b)).
A count of obstructing a peace
officer (§ 148, subd. (a)(1)) was dismissed in the
Defendant
was sentenced to prison for seven years, consisting of twice the upper term of
three years plus one year for the prison term.
He was awarded 383 days of custody credit and 190 days of conduct
credit, and ordered to pay a $1,000 restitution fine (§ 1202.4, subd. (b)), a
$1,000 restitution fine suspended unless parole is revoked (§ 1202.45), a $40
court operations fee (§ 1465.8, subd. (a)(1)), a $30 court facilities
assessment (Gov. Code, § 70373), a $340.01 booking fee and a $62.09
classification fee (Gov. Code, § 29550.2).
FACTS
On the
morning of September 15, 2011,
Sacramento Police Officer Scott Blynn was patrolling in a marked car. He saw defendant, on a bicycle, make two
traffic violations: he rode on a
sidewalk, and he failed to use proper hand signals. Blynn activated his overhead lights in order
to perform an enforcement stop. When defendant
failed to yield to the lights, Blynn activated his siren and in-car camera and
chased after defendant. Blynn was not
able to keep the bicycle in view the entire time he was chasing it.
During the
chase, Officer Blynn did not see defendant throw anything from the
bicycle. Later, when he viewed the
recording from the camera, Blynn noticed that, when they passed a high crime
area, defendant’s right hand had come off of the handlebars and had moved
downward. After colliding with the
patrol car, defendant abandoned the bicycle and ran down an alley, Blynn chased
him down on foot and handcuffed him.
Defendant explained that he had run because he believed his parole
officer had issued an arrest warrant for him and he was en route to the parole
officer. In fact, no warrant had been
issued and the nearest parole office was more than 10 miles away.
When
arrested, defendant had a cellular telephone in his possession. Defendant acknowledged to Officer Blynn that
the telephone belonged to him.
Toua Lee
testified that he resided in Sacramento
along the route of Officer Blynn’s pursuit.
While in his garage on September
15, 2011, Lee heard sirens and saw the police chasing a Black man
who was wearing dark clothes and riding a bicycle. As the bicycle passed by, at approximately 9:45 a.m., Lee heard something hit his
lawn. When shown a video obtained from
the patrol car, Lee testified that it appeared to depict the bicycle rider who
had dropped the gun into his front yard.
Lou Lor,
the wife of Toua Lee, testified that she did not see a bicycle but did see a
patrol car with its lights and sirens activated.
When Lee
and Lor investigated the lawn moments later, they found a little gun that
looked like a toy. They left the item in
place and went to their place of business.
When they returned home that evening, they saw that the gun was still on
the lawn. Lor telephoned the police, and
an officer retrieved the gun. The gun
was a Raven Arms .25-caliber semiautomatic handgun.
Sacramento
County Sheriff’s Officer Kenny Shelton obtained defendant’s cellular telephone
from the jail and retrieved data from the phone. The phone contained 61 photographs, hundreds
of text messages, and records of numerous incoming and outgoing telephone
calls. A photograph designated People’s
exhibit 9 was taken on September 9,
2011. Photographs designated
People’s exhibits 10 and 11 were enlargements of exhibit 9. The photographs depicted a Raven Arms
.25-caliber semiautomatic handgun.
The parties
stipulated that no identifiable fingerprints were found on the gun. They also stipulated that defendant
previously had been convicted of a felony.
The defense
presented several exhibits consisting primarily of photographs obtained from
the cellular telephone and rested subject to the admission of the
exhibits. Thereafter, the defense
re-opened to present brief testimony from defendant’s parole agent. The agent left a message for defendant at one
of his contact numbers telling defendant to appear at her office at 1:00 p.m. on September 15, 2011, or else she would issue a
warrant.
DISCUSSION
We
appointed counsel to represent
defendant on appeal. Counsel filed an
opening brief that sets forth the facts of the case and requests this court to
review the record and determine whether there are any
v. Wende (1979) 25 Cal.3d 436.)
Defendant was advised by counsel of the right to file a supplemental brief
within 30 days of the date of filing of the opening brief.
Defendant
filed a supplemental brief identifying
seven separate issues but providing no argument, authority, or record reference
to support his claims. This does not
comply with the California Rules of
Court, which provides that an appellate brief must “[s]upport each point by
argument and, if possible, by citation of authority†(rule 8.204(a)(1)(B)); and must “support any
reference to a matter in the record by a citation to the volume and page number
of the record where the matter appears†(rule 8.204(a)(1)(C)).
In any event, none of defendant’s
contentions has merit.
I
Defendant contends there was “[n]o
probable cause after the dismissal of the traffic infraction, anything
thereafter is fruit of poision [sic].†The contention appears to refer to the
prosecution’s failure to pursue the two traffic violations, i.e., riding
on a sidewalk and failure to use proper hand signals. But defendant identifies no violation of law
during the observation of those infractions that would render the discovery of
the firearm an unlawful fruit. No error
appears.
II
Defendant
claims there was an “[i]llegal search and seizure of information retrieved from
cell phone in violation of 4th Amendment.â€
The trial court rejected this contention because defendant, a parolee,
had waived his Fourth Amendment rights; and the search was not done to harass
him, because it is common for crime suspects to photograph their guns and store
the images on their cellular telephones.
Defendant has not identified any error in the trial court’s reasoning
and ruling.
III
Defendant
notes there were “[n]o fingerprints or DNA recovered from [the] firearm,
belonging to†him. But he does not claim
fingerprint or DNA evidence was required to support his conviction. In any event, the conviction is supported by
substantial evidence. (E.g.,
v. Boyer (2006) 38 Cal.4th
412, 479-480.)
IV
Defendant
next complains of the “use of images from a phone that was never proven
to be [his] and that was never introduced as evidence.†(Original underscoring.) Defendant overlooks Officer Blynn’s testimony
that defendant acknowledged that the telephone belonged to him. As we have seen, the prosecution and defense
introduced numerous items of evidence obtained from the telephone. No reason to introduce the telephone
instrument appears.
V
Defendant
claims he was “[d]enied [his] right to fair and impartial trial in violation of
6th Amendment.†The claim fails for lack
of elucidation. Our review of the record
has failed to show any denial of defendant’s right to a fair and impartial
trial.
VI
Defendant
next claims he received “[c]ruel and unusual punishment for a sentence in
violation of 6th Amendment.†The claim
fails. “ ‘It is a defendant's burden to prove the punishment prescribed for his
or her offense is unconstitutional.
[Citation.]’ †(
567, 572, quoting People v. Wingo
(1975) 14 Cal.3d 169, 174, 183.) By
providing no supporting argument or authority, defendant has failed to meet his
burden to prove a Sixth Amendment violation.
VII
Defendant
lastly contends he received “[i]neffective appellate counsel for not raising
meritorious issues.†With the exception
of the credit computation issue, which we address and resolve
meritorious issues that could result in a disposition more favorable to
defendant. Thus, the ineffective
assistance claim fails.
VIII
Our review
of the record discloses that defendant was in presentence custody from
September 15, 2011, through October 12, 2012, a period of 394 days. Under section 4019, defendant is entitled to
196 days of conduct credit.
Having
undertaken an examination of the entire record, we find no other arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The
judgment is modified to award defendant 394 days of custody credit and 196 days
of conduct credit. As so modified, the
judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment and to forward a certified
copy to the Department of Corrections and
Rehabilitation.
NICHOLSON , J.
We concur:
RAYE , P. J.
MURRAY , J.
name="_ftn1" title="">[1] Further
statutory references are to the Penal Code unless otherwise indicated.
