P. v. Yagle

File 7/13/06 P. v. Yagle CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court for Los Angeles County, John A. Torribio, Judge. Affirmed.

Jonathan B. Steiner, Executive Director, Richard L. Fitzer, Staff Attorney, California Appellate Project, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance on behalf of Plaintiff and Respondent.

-------------

An information charged defendant and appellant Michael Joseph Yagle (defendant) with possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). The information further alleged that defendant had suffered a prior conviction for a serious or violent felony (Pen. Code, §§ 667, subds. (b) - (i) ; 1170.12, subds. (a) - (d)), and that he had served three prior prison terms (Pen. Code, § 667.5, subd. (b)). Against the advice of his counsel and the trial court, defendant rejected the prosecutor's offer of 32 months, and that offer was withdrawn.

On May 10, 2005, defendant filed a Pitchess[1] motion in which he sought information concerning false accusations, false police reports, false arrests and planting or fabricating evidence by any of the arresting officers. On June 13, 2005, the trial court conducted an in camera hearing on defendant's Pitchess motion and concluded that there were no discoverable peace officer records.[2] On June 24, 2005, the trial court heard and denied defendant's Marsden[3] motion.

At trial, Los Angeles County Deputy Sheriffs Tim Brockus and Daniel Gillespie testified that they were driving in a marked sheriff's vehicle when they stopped defendant for riding a motor scooter without a helmet. The officers were approximately 40 feet away from defendant when they saw him remove a silver metallic object from his right chest area and discard it to his right. The officers recovered a small metallic cylinder that contained a plastic bag with an off-white rock-like substance that resembled methamphetamine. The parties stipulated that a criminalist tested the contents of the cylinder and determined that it contained 0.30 grams of methamphetamine. The jury found defendant guilty as charged. Defendant waived his right to a jury trial on the prior conviction allegations, and admitted them.

On July 25, 2005, the trial court denied defendant's Romero[4] motion to strike the prior conviction. Defendant was sentenced to the mid-term of two years, doubled to four. Defendant was accorded 242 days of presentence custody credit, consisting of 162 days of actual custody and 80 days of conduct credit.

We appointed counsel to represent defendant in this appeal. After examination of the record, counsel filed an opening brief asking this court to conduct an independent review of the record in accordance with People v. Wende (1979) 25 Cal.3d 436. On December 20, 2005, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days in which to submit by brief or letter any contentions, issues or argument he wished this court to consider. On May 10, 2006, defendant filed a letter in which he delineates a number of disagreements he had with his trial counsel concerning the rejected plea agreement, the scope of the Pitchess discovery request, whether a motion to dismiss the information should have been filed, and whether defendant should have testified on his own behalf at trial. In his letter, defendant also contends the arresting officers lied; that the jury reached a verdict too quickly, indicating that they may not have deliberated together sufficiently; and that he should have been given the opportunity, after the trial commenced, to testify on his own behalf.

We have reviewed the entire record as augmented by our order and find that there was no error.

A. Marsden Hearing

We review the trial court's decision to deny a Marsden motion for an abuse of discretion. (People v. Earp (1999) 20 Cal.4th 826, 876.) Defendant complained at his Marsden hearing that defense counsel did not give him good advice concerning the rejected plea agreement, implying that he would not have rejected the plea agreement had he been properly advised.[5] The trial court noted that it, too, had advised defendant to consider the plea agreement before proceeding to trial, but that defendant had rejected the agreement notwithstanding the advice of both his counsel and the trial court. The trial court denied the Marsden motion. The trial court properly determined that â€