P. v. Hewitt
Filed 6/18/13 P. v. Hewitt CA2/4
NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
LARRY D. HEWITT,
Defendant and Appellant.
B243556
(Los Angeles County
Super. Ct. No. MA055030)
APPEAL
from a judgment of the Superior Court of
County, Bernie C. Laforteza, Judge. Affirmed.
James
Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
>
Defendant
Larry D. Hewitt pled no contest to carrying a dirk or dagger that was concealed
upon his person and to having a prior serious felony conviction within the
meaning of the “Three Strikes†law.
(Pen. Code, §§ 21310, 667, subds. (b)-(i), 1170.12, subds.
(a)-(d).) He filed a
of his suppression motion (Pen. Code, § 1538.5) and his sentence. We affirm.
By information
dated February 3, 2012,
defendant was charged with one count of carrying a dirk or dagger that was
concealed upon his person. It was
further alleged that he had suffered one prior conviction within the meaning of
the Three Strikes law and had served four prior prison terms. (Pen. Code, § 667.5, subd. (b).) Defendant represented himself in the trial
court.
On
May 4, 2012, defendant’s
suppression motion was heard. Los
Angeles County Sheriff’s Deputy Jeremiah Fletcher testified that on January 4, 2012, at approximately 5:30 p.m., he responded to a location in Lancaster
after receiving a call regarding a man with a knife. When the deputy arrived, he saw a bus at a
designated stop and people standing nearby.
The bus driver and others were pointing at the bus and saying a man with
a knife was inside. Deputy Fletcher
entered the bus and detained defendant, who was identified by the bus driver as
the man with the knife. The deputy
escorted defendant off of the bus and asked him if he had any weapons on
him. After defendant responded that he
had a knife, Deputy Fletcher conducted a patdown search and recovered a Swiss
army knife with the open blade locked in defendant’s right front pants
pocket.
Maria Lopez was
called by defendant. She testified that
on January 4, she was told by a man that she needed to call 911. She stated she received one such call.
Defendant’s
suppression motion was denied.
On
August 22, 2012, defendant pled no contest to the weapon charge and to the
allegation that he had suffered a prior serious felony conviction within the
meaning of the Three Strikes law.
Probation in another case was terminated.
Defendant’s
court-appointed appellate counsel filed a brief raising no issues and asking
this court to independently review the record pursuant to People v. Wende (1979) 25
Cal.3d 436. We advised defendant that he
had 30 days within which to raise any contentions that he wished for us to
consider. On April 10, 2013, he filed a
supplemental brief, which we discuss below.
With respect to
the patdown search, a police officer may temporarily detain and conduct a
patdown of an individual if the officer can point to specific and articulable
facts that give rise to a reasonable suspicion that criminal activity is afoot
and the individual connected with it is presently armed. (Terry
v. Ohio (1968) 392 U.S. 1, 30.)
Here, there is no question that the information Deputy Fletcher received
from numerous, identifiable citizens that defendant had a knife on the bus
provided reasonable suspicion that defendant was tied to criminal activity and
was presently armed. (See
52, 58-60 [receipt by police of two independent citizen tips that the defendant
was armed with firearm justified patdown search].) In addition, defendant’s admission that he
had a knife on his person justified the deputy’s search for his safety, as well
as that of the people around the bus.
The trial court properly denied defendant’s suppression motion.
In his
supplemental brief, defendant alleges the record is incomplete. He asserts that the trial court (a judge
other than the one who accepted his plea) struck his prior strike during an
August 20, 2012 hearing at which defendant was not present. In addition, defendant contends the strike
prior had been declared constitutionally invalid in a prior proceeding.
With respect to
defendant’s claim that his prior strike was stricken in this proceeding, we
have the August 20, 2012 minute order from the court defendant identifies as
the one where the hearing occurred.
There is no reference in the minute order to a hearing to dismiss the
prior conviction or a ruling by the court striking it. Defendant does not explain how he came to
admit a prior conviction that had been stricken at an earlier hearing.
Turning to
defendant’s claim that the alleged prior had been declared unconstitutional, we
observe that defendant, who was in propria persona, filed a motion claiming
that the alleged prior (a violation of Pen. Code, § 191.5) had been dismissed
as part of an earlier plea bargain. The
information was amended to change the prior to a conviction under Penal Code
section 192, subdivision (c)(3) and defendant pled no contest to that
allegation. Defendant also asked the
trial court to dismiss the prior strike pursuant to People v. Superior Court (Romero)
the ground that it was constitutionally invalid. Having failed to raise the issue in the trial
court, defendant has forfeited the claim.
(See People v. Williams (1997)
16 Cal.4th 153, 250.)
More importantly,
we see no reason to consider a challenge to defendant’s sentence because he
agreed to accept it as part of a plea bargain.
As the trial court pointed out, defendant was facing a potential
sentence of 10 years. In addition, he
had a second case in which his probation had been revoked. His plea resulted in an agreed upon sentence
of 32 months and his probation was terminated.
“Where defendants have pleaded guilty in return for a specified
sentence, appellate courts are not inclined to find error even though the trial
court acts in excess of jurisdiction in reaching that figure, as long as the
court does not lack fundamental jurisdiction.â€
(People v. Nguyen (1993) 13
Cal.App.4th 114, 122.) Having received
the benefit of his bargain, defendant is estopped from challenging his sentence
on appeal. (People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1058.)
We have reviewed
the record and are satisfied no other arguable issues exist. Defendant has received effective appellate
review of the judgment entered in this case.
(Smith v. Robbins (2000) 528 U.S. 259, 277-279; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J.
WILLHITE,
J.
