P. v. Grady

Filed 2/26/10 P. v. Grady CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Michael Grady appeals from a judgment and sentence following a guilty plea to one count of felony possession of a firearm by a felon. His attorney has filed a brief raising no issues and asks this court to conduct an independent review of the record to identify any issues that could result in reversal or modification of the judgment if resolved in defendants favor. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel declares he notified defendant that he could file a supplemental brief raising any issue he wishes to call to this courts attention. No supplemental brief has been received.

Upon independent review of the record, we conclude no arguable issues are presented for review and affirm.

I. Factual and Procedural Background

On the evening of December 26, 2008, Kevin Wade was working as a bouncer at a San Francisco Bar, Irelands 32. Defendant was in the bar and apparently took affront to some other patrons. Wade told defendant that if he was not going to get along with those patrons, to stay away from them and that were not going to have any fights. Wade then took his place sitting at the front door, but kept looking into the bar. He saw defendant get up and start walking toward the patrons in question. Wade stood up and went into the bar. He saw defendant face the patrons (his back toward Wade), reach into his jacket and pull out a gun. There were four or five men in the group defendant was facing, although the gun was pointed mostly at the man closest to and about five feet from defendant, who Wade referred to as Dennis. Wade approached defendant from behind, calmly announced his presence and told defendant to put the gun away. Defendant in kind of a dramatic fashion put the gun back into his jacket and walked out. Wade went outside and saw defendant walking west on Geary. Wade also spotted a patrol car and told the officer what had happened. Wade saw defendant again about five minutes later at a bar, Fizzys, less than a block away. Wade stood outside while officers entered the bar with guns drawn. Wade told the officers the gun was most likely in defendants jacket, which was draped over a barstool. Wade identified defendant and the gun, and signed a citizens arrest form.

The San Francisco District Attorney filed a nine-count complaint against defendant charging him in counts 1 and 3 with felony assault with a firearm (Pen. Code,  245, subd. (a)(2)),[1] in counts 2 and 4 with felony assault with a deadly weapon ( 245, subd. (a)(1)), in count 5 with possession of a firearm by a felon ( 12021, subd. (a)(1)), in count 6 with felony possession of a concealed stolen firearm on his person ( 12025, subd. (a)(2)), in counts 7 and 8 with misdemeanor exhibition of a concealable firearm in public ( 417, subd. (a)(2)), and in count 9 with misdemeanor possession of a concealed firearm on his person ( 12025, subd. (a)(2)). The complaint further alleged a one-year prior prison term enhancement ( 667.5, subd. (b)).

Defendant made a motion to suppress which was heard in conjunction with the preliminary hearing. The magistrate denied the motion, ruling there was sufficient probable cause for the arrest and search, and held defendant to answer all charges.

The district attorney filed an information alleging all nine counts, the prior enhancement and an additional enhancement based on a prior, out-of-state conviction ( 667, subds. (d)-(e), 1170.12, subds. (b)-(c)). Defendant filed a section 995 motion to set aside the information, which was denied after a hearing on April 23, 2009.

On May 11, 2009, the district attorney moved to dismiss counts 2, 4, 7, 8 and 9. Jury selection commenced the same day. On May 12, the district attorney dismissed counts 1 and 3, and filed an amended information charging defendant in count 1 with felony possession of a firearm by a felon ( 12021, subd. (a)(1)) and in count 2 with felony possession of a concealed stolen firearm in a vehicle ( 12025, subd. (a)(1)). On May 13, after a conflict-of-interest for defense counsel came to light (he had previously represented a prosecution witness), the parties reached a negotiated disposition. Defendant agreed to plead guilty to count 1, felony possession of a firearm by a felon ( 12021, subd. (a)(1)), with the understanding imposition of sentence would be suspended, he would be placed on three years of formal probation and, as a condition of probation, serve one year in the county jail (with credit for time served). After full admonishment and advisement, the court accepted defendants plea.

On July 10, the court sentenced defendant in accordance with the negotiated disposition and also imposed a four-way probation search condition and a stay away from the bar, along with standard fines, costs and assessments. Defendant filed a timely notice of appeal.[2]

II. Analysis

Upon our independent review of the record we find no meritorious issues that require further briefing on appeal. Defendant was competently represented by appointed counsel at all times. His motion to suppress was properly denied. At the change of plea hearing, he was fully advised of his Boykin-Tahl[3]rights and entered into an Arbuckle[4] waiver. A probation report was duly prepared and concurred in the proposed disposition. Defendant was sentenced in accordance with the negotiated disposition.

III. Conclusion

The judgment is affirmed.

_________________________

Banke, J.

We concur:

_________________________

Marchiano, P. J.

_________________________

Dondero, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Penal Code.

[2] By entering a guilty plea, defendant admitted the sufficiency of the evidence establishing the crime, and is not entitled to review of any issue that goes to the question of guilt. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his plea. Therefore, the only issues cognizable on appeal are issues relating to the denial of a motion to suppress or issues relating to matter arising after the plea was entered. ( 1237.5; Cal. Rules of Court, rule 8.304(b)(4).)

[3]Boykin v. Alabama(1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

[4]People v. Arbuckle (1978) 22 Cal.3d 749.