P. v. Jones

Filed 7/27/09 P. v. Jones 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge.

Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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FACTS AND PROCEEDINGS

On January 3, 2007, a criminal complaint was filed against appellant, Jason Paul Jones. During the preliminary hearing on February 21, 2007, the appellant also brought a suppression motion. At the conclusion of the hearing, the trial court held appellant to answer and denied the suppression motion.

On March 7, 2007, appellant sought to challenge his trial counsels representation pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The trial court found the matters raised by appellant were covered by the suppression motion brought by defense counsel and that defense counsel was doing everything to represent appellants interests. The court denied appellants Marsden motion.

On March 7, 2007, appellant, Jason Paul Jones, was charged in an information with felony possession of a weapon (Pen. Code,  12020, subd. (a)(3)).^[1] The information alleged a prior prison term enhancement ( 667.5, subd. (b)). While the instant action was pending, appellant was convicted in case No. 1242071 of two counts of receiving stolen property ( 496, subd. (a)).^[2]

On September 5, 2007, the court temporarily suspended proceedings to determine whether appellant was competent to stand trial. Doctor Philip Trompetter was appointed to evaluate appellant. Although appellant had a history of behavioral, psychiatric, and substance abuse problems, Dr. Trompetter concluded appellant was capable of understanding the nature and object of the proceedings against him and was capable of assisting counsel or representing himself.

On August 29, 2008, appellant entered into a plea agreement in this action that he would receive an eight-month consecutive sentence if he admitted the possession of a weapon allegation. Appellant was released from custody pending sentencing with the understanding that if he appeared on time for sentencing, he would receive, in case No. 1242071, the midterm of two years on count one and a consecutive term of eight months on count two plus one year for the prior enhancement. Appellant waived his right to any appeal in both cases.

The court advised appellant of the consequences of his plea.^[3] The parties stipulated the preliminary hearing could be used to establish the factual basis for appellants plea. The court explained appellants rights to him pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. Appellant waived his rights and pled no contest to felony possession of a weapon.

The court sentenced appellant on September 11, 2008, to a prison term of eight months in this case to be served consecutively to his sentence in case No. 1242071. Appellants total prison term is five years four months. Appellant filed a timely notice of appeal and did not obtain a certificate of probable cause.

DISCUSSION

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on March 20, 2009, we invited appellant to submit additional briefing. To date, he has not done so.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Gomes, J., and Dawson, J.

^[1] Unless otherwise noted, all statutory references are to the Penal Code.

^[2] Appellants appeal from the judgment in case No. 1242071 is currently before this court in our case No. F056326. On February 26, 2009, we denied appellants motion to consolidate case No. F056326 with this action. Instead, we directed the Clerk/Court Administrator of our court to coordinate the two appeals so they can be considered simultaneously with the same panel.

^[3] On December 31, 2006, a detective with the Stanislaus County Sheriffs Department observed appellant at 9:00 p.m. riding a bicycle without a light in violation of the Vehicle Code. When the detective stopped appellant, he told the detective he had a knife. When appellant pulled back his jacket and T-shirt, the detective saw a fixed-blade knife in the waistband of appellants pants.