Filed 3/30/17 P. v. Russell CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID ALLAN RUSSELL,
Defendant and Appellant.


A148525

(Contra Costa County
Super. Ct. No. 5-150491-9)


This is an appeal from final judgment after a jury convicted appellant David Allan Russell of felony reckless evasion of a peace officer and felony driving or taking a vehicle without consent. The trial court thereafter found true various enhancements related to appellant’s prior felony convictions, and ordered him to serve a total prison term of two years and eight months.
After appellant filed a timely notice of appeal, appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (People v. Wende) in which she raises no issue for appeal and asks this court for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (People v. Kelly).) Counsel attests that appellant was advised of his right to file a supplemental brief in a timely manner, but he declined to exercise such right.
We have examined the entire record in accordance with People v. Wende. For reasons set forth below, we agree with counsel no arguable issue exists on appeal. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 3, 2015, a felony information was filed charging appellant with one count of felony reckless evasion of a peace officer (Veh. Code, § 2800.2) (count one), and one count of felony driving or taking a vehicle without consent, to wit, a 1985 Honda motorcycle (Veh. Code, § 10851, subd. (a)) (count two).
This felony information was based on the following events occurring on the evening of January 31, 2015. At about 11:30 p.m., as Officer Michael Hernandez of the El Cerrito Police Department was monitoring traffic in a marked patrol car at a residential intersection, he observed appellant traveling northbound at 60 miles per hour (mph) in a 25 mph zone on a black 1985 Honda motorcycle. Officer Hernandez thus activated his emergency lights and pursued the motorcycle at a speed of 60 mph. Appellant, however, after looking over his shoulder toward the police car, accelerated toward the freeway, his eyes concealed by a tinted motorcycle helmet.
At this point, Officer Hernandez activated his siren and followed appellant onto the freeway at a speed of approximately 80 mph (to wit, 15 mph above the posted speed limit), prompting several vehicles to brake. Appellant, exiting the freeway via an off-ramp, weaved around stopped vehicles to ride through a red light as Officer Hernandez continued to pursue him. Both vehicles continued into a residential area with a posted speed limit of 25 mph at speeds of about 65 mph.
The vehicle chase ultimately ended about two minutes later, in front of appellant’s residence on Wenk Avenue, to wit, 1.6 miles from where it began. After abandoning the motorcycle, appellant fled on foot until he tripped, enabling the officer to apprehend him.
Police later determined that the motorcycle driven by appellant had been spray-painted black from red after being stolen from Andrew Merrill about ten days earlier. According to Merrill, his motorcycle, since being stolen, had sustained damage to the ignition and gas cap and obtained a new tire. Merrill was not acquainted with appellant and was unsure whether appellant had stolen the motorcycle.
On April 6, 2015, appellant entered a plea of not guilty to the two charges in the amended information and was released on bond.
On April 21, 2016, a consolidated amended felony information was filed based upon events occurring after the April 3, 2015 information was filed, charging appellant with one additional count of felony driving or taking a vehicle without consent, to wit, a 1994 Nissan truck (Veh. Code, § 10851, subd. (a)) (count three).
It was further alleged with respect to count three that the offense was committed while appellant was released from custody on bail or on his own recognizance within the meaning of Penal Code section 12022.1. In addition, it was alleged that appellant had a prior conviction for a serious and/or violent felony within the meaning of sections 1170.12, subdivisions (b) and (c), and 667, subdivisions (d) and (e), thereby requiring service of sentence in state prison rather than county jail (§ 1170, subd. (h)(3)); and was ineligible for probation pursuant to section 1203, subdivision (e)(4).
These enhancement allegations were based on police records indicating appellant had been convicted on July 12, 2000 of second degree robbery (§ 211), a serious and/or violent felony within the meaning of sections 667, subdivisions (d) and (e), and 1170.12, subdivisions (b) and (c). Further, this offense exempted him from local custody pursuant to section 1170, subdivision (h)(3), and from eligibility for probation pursuant to section 1203, subdivision (e)(4). In addition, police records indicated appellant had been convicted on January 7, 2004 of felony petty theft with priors (§§ 484, subd. (a), 666).
On April 21, 2016, appellant entered a plea of not guilty as charged. Trial by jury thus began the same day.
On April 27, 2016, the jury found appellant guilty of counts one and two, but not guilty of count three. The trial court thereafter found true beyond a reasonable doubt the special allegations relating to appellant’s prior convictions, and found him ineligible for probation.
Accordingly, the trial court, after taking note of appellant’s status as a disabled war veteran suffering from post-traumatic stress disorder (§ 1170.9), sentenced him to a total prison term of two years and eight months, representing the mitigated term on counts one and two, doubled for his commission of a strike offense, the latter term to be served concurrently. The trial court also granted appellant a total of 57 days of custody credits, and ordered him to pay a $600 restitution fine, $600 parole revocation fine (stayed), $60 criminal conviction assessment, $176 probation report fee, and $80 court operations assessment fee. In addition, the court reserved the issue of victim restitution. Appellant’s notice of appeal of the judgment was filed the same day.
DISCUSSION
As mentioned above, neither appointed counsel nor appellant has identified any actual issue for our review. Upon our own independent review of the record, we agree no actual issue exists. (People v. Wende, supra, 25 Cal.3d 436; Anders v. California (1967) 386 U.S. 738, 744.) Appellant, represented by competent counsel, received a total prison term of two years and eight months, representing the mitigated term on counts one and two, doubled for his commission of a strike offense, the latter term to be served concurrently. This sentence was consistent with the recommendation of the probation department. The trial court then awarded appellant 57 days of custody credits and ordered him to pay various fees, fines and assessments, while reserving the issue of victim’s restitution. This sentence was lawfully imposed following a contested hearing. (Cal. Rules of Court, rules 4.413, 4.414, 4.423, 4.425; Pen. Code, §§ 1170, subd. (h)(3), 667, subds. (d), (e), 1203, subd. (e)(4), 1170.9.)
This record, we conclude, afforded the trial court a reasonable basis for its judgment. (Cal. Rules of Court, rules 4.414, 4.420, 4.421 and 4.423.) And while appellant was informed by counsel of his right to file a supplemental brief in this appeal, he declined to do so. As such, based upon our independent review of this case, we find no basis for reversal.
Having ensured appellant has received adequate and effective appellate review, we affirm the trial court’s judgment. (People v. Kelly, supra, 40 Cal.4th at pp. 112-113.)
DISPOSITION
The judgment is affirmed.


_________________________
Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.






People v. David Allan Russell, A148525