P. v. Bickham

Filed 10/12/07 P. v. Bickham CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William H. Kennedy, Judge. Affirmed.

After the trial court denied a motion to dismiss based on alleged prosecutorial misconduct, Michael Bickham entered negotiated guilty pleas to voluntary manslaughter (Pen. Code,  192, subd. (a)) and possession of a firearm by a convicted felon (Pen. Code,  12021, subd. (a)(1)). In accordance with the stipulated sentence in the plea bargain, the trial court imposed a 21-year prison term─the upper term of 11 years on the manslaughter count and a consecutive upper term of 10 years on the firearm possession count.

FACTS

At about 2:00 a.m. on February 25, 2006, members of two gangs engaged in a fight in the Gaslamp District of downtown San Diego. The fight escalated and a gun was fired, killing Anton Gilbert. Bickham was captured fleeing the scene. Police saw Bickham throw a gun into a construction zone; the gun matched the one used in the shooting. None of the witnesses at the scene were able to identify Bickham as the shooter, and one witness stated that Bickham was not the shooter. Bickham was charged with murder.

According to a confidential police informant, a gang member with the moniker "Popeye" told him Bickham had written him a letter from jail asking for help by having someone else admit to the killing. "Popeye" told the informant that his brother was the shooter, but he was not going to help out Bickham. The informant, who was a family friend of Bickham's, relayed this information to a police detective and later to an investigator for the district attorney's office. The prosecution did not reveal this information to the defense until after it helped the informant move to Detroit, Michigan.

The defense filed a motion to dismiss for outrageous misconduct and failure to disclose exculpatory evidence.

After an evidentiary hearing, the court denied the motion to dismiss in a 10-page written decision.

The following week, Bickham and the prosecution agreed to the plea bargain, which called for the dismissal of the murder charge in exchange for the guilty plea to voluntary manslaughter. During the change of plea hearing, Bickham expressly waived the right to appeal the denial of his motion to dismiss for outrageous misconduct.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable issues: (1) whether a defendant can waive his right to appeal; and (2) whether imposition of the upper terms for the two offenses in accordance with the stipulated sentence would be subject to the rule of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].

We granted Bickham permission to file a brief on his own behalf. He has not responded.

A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellant counsel, has disclosed no reasonably arguable appellate issues. Bickham has been competently represented on this appeal.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.