P. v. Howard

Filed 4/10/07 P. v. Howard CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant Andrew Howard appeals from the judgment entered after his plea of no contest. His counsel raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436.

BACKGROUND

On February 16, 2005, Eugenio Aceron was attacked by five assailants while walking home from the Daly City BART station after returning there from his job in San Francisco. In the course of the attack, the assailants took Acerons backpack, struck him in the face causing him to fall to the ground, took his cell phone, and then continued to strike him as he lay on the ground. Aceron eventually got away and fled to his home. He sustained multiple injuries in the attack, including damage to his upper lip, right hand, back, the rear of his head, and left thumb. His injuries required medical attention.

A subsequent investigation of the attack led detectives from the Daly City Police Department to appellant, who had reported a similar attack on the same evening, claiming that he had broken his hand by punching an attacker. Under police interrogation appellant admitted that there was no separate attack, and that his hand had been broken in the altercation with Aceron. Appellant claimed that he punched Aceron in an attempt to defend Napoleon Wommack. In questioning Wommack, detectives elicited his admission of involvement in the incident, albeit one that changed several times during the interrogation.

The information filed in San Mateo Superior Court on March 22, 2005, charged appellant and Wommack each with one count second degree robbery (Pen. Code,  212.5, subd. (c)), which is a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(19). On April 26, 2005, appellant pled no contest to the charge of second degree robbery. The court found appellant guilty and that the 1192.7, subdivision (c)(19) allegation was true. On May 24, 2005, the trial court stayed a nine-month sentence and placed appellant on three years probation. Appellant was ordered to pay restitution to the victim, and to pay other, standard fees.

On January 31, 2006, San Mateo police made a traffic stop of a car driven by appellant. An initial subsequent probation search of the car yielded a substance suspected to be methamphetamine, as well as marijuana. The police tried to arrest appellant, who resisted and was eventually apprehended and subdued. After arresting appellant, the police conducted a more thorough search of his car, during which they found a lock pick set and drill, a butterfly knife, a switch blade knife concealed in a cigarette lighter, more suspected methamphetamine, a tin containing unused .22 caliber bullets, and a loaded handgun.

On February 3, 2006, the San Mateo County Probation Department filed an Affidavit of Probation Violation and accompanying memo to the trial court in the 2005 robbery case, detailing the January 31, 2006, incident and recommending that appellants probation be revoked and that he be incarcerated.

On March 2, 2006, appellant was charged in San Mateo County Superior Court with carrying a loaded firearm on his person or vehicle while in a public place (Pen. Code, 12031, subd. (a)(2)(A)), unlawfully owning or having in his possession a handgun (Pen. Code, 12021, subd. (a)(1)), possessing a substance containing methamphetamine while armed with a loaded operable firearm (Health & Saf. Code,  11370.1, subd. (a)), transporting, importing, selling, furnishing, administering, or giving away a controlled substance, methamphetamine (Health & Saf. Code, 11379), possessing methamphetamine for the purpose of sale (Health & Saf. Code, 11378), manufacturing or possessing a weapon of the kind commonly known as a dirk or dagger (Pen. Code, 12020, subd. (a)), carrying a switch-blade having a blade two inches or more in length (Pen. Code, 653k), and possessing not more than 28.5 grams of marijuana.

After initially pleading not guilty to all charges, appellant pled no contest to the charge of unlawfully owning or having in his possession a handgun under Penal Code section 12021, subdivision (a)(1) on May 26, 2006, and the court accepted his plea, finding appellant guilty. Appellant also admitted the alleged strike under section 1170.12, subdivision (c)(1); and the prosecution dismissed all remaining counts. Appellant was sentenced to 16 months for the section 12021, subdivision (a)(1) conviction, and the court doubled that term as a second strike under section 1170.12, subdivision (c)(1) to 32 months. Also on May 26, 2006, the court found appellant to be in violation of the probation imposed after his no contest plea in the 2005 robbery case. Appellant was sentenced to two years incarceration in addition to the 32 months pursuant to the handgun possession plea, and ordered to pay restitution and other fines and fees.

On July 27, 2006, appellant filed a notice of appeal based on sentencing grounds under California Rules of Court, rule 8.304(b)(4)(B) (former rule 30(b)(4)(B)). The notice listed only the 2006 firearm possession case (No. SC060578), but by court order on September 29, 2006, the notice was amended to include the 2005 robbery case (No. SC058276). The opening Wende brief was filed on February 14, 2007. No further briefing was requested or granted.

Our independent review of the record reveals no arguable issues. Accordingly, the judgment is affirmed.

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Lambden, J.

We concur:

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Kline, P.J.

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Richman, J.

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