Fear Not Law Articles: P. v. Andrade

P. v. Andrade

Filed 1/31/07 P. v. Andrade CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

TODD ANTHONY ANDRADE,

Defendant and Appellant.

F048471

(Super. Ct. No. SCR004344)

OPINION

APPEAL from a judgment of the Superior Court of Madera County. Charles A. Wieland, Judge.

Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.

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STATEMENT OF THE CASE

On December 23, 2004, the Madera County District Attorney filed an information in superior court charging appellant as follows: count I--evading a peace officer while in a motor vehicle (Veh. Code, § 2800.2, subd. (a)); count II--possession of a weapon, i.e., a billy (Pen. Code, § 12020, subd. (a)(1)); count III--resisting arrest by force or violence (Pen. Code, § 69); and count IV--assault with a deadly weapon or by force likely to cause great bodily injury on a peace officer (Pen. Code, § 245, subd. (c)). The district attorney specially alleged two prior strike convictions (Pen. Code, § 667, subds. (b)-(i)), a prior serious felony conviction (Pen. Code, § 667, subd. (a)) (based upon count IV alleging a specified serious felony), and three prior prison terms (Pen. Code, § 667.5, subd. (b)).

On January 4, 2005, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On or about January 20, 2005, appellant filed a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to obtain personnel and disciplinary records of the arresting officer, Deputy Christian Todd Swanson.

On that same date, appellant filed a request for the court to consider the exercise of discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

On March 1, 2005, the superior court conducted an in camera review of Deputy Swanson's county personnel file and determined that there was nothing in the file â€

Description	On December 23, 2004, the Madera County District Attorney filed an information in superior court charging appellant as follows: count I--evading a peace officer while in a motor vehicle (Veh. Code, S 2800.2, subd. (a)); count II--possession of a weapon, i.e., a billy (Pen. Code, S 12020, subd. (a)(1)); count III--resisting arrest by force or violence (Pen. Code, S 69); and count IV--assault with a deadly weapon or by force likely to cause great bodily injury on a peace officer (Pen. Code, S 245, subd. (c)). The district attorney specially alleged two prior strike convictions (Pen. Code, S 667, subds. (b)-(i)), a prior serious felony conviction (Pen. Code, S 667, subd. (a)) (based upon count IV alleging a specified serious felony), and three prior prison terms (Pen. Code, S 667.5, subd. (b)). Appellant contends defense counsel's failure to object to the prosecutor's question regarding his subjective intent and the prosecutor's statement at argument deprived him of his constitutional rights to the effective assistance of counsel and to a fair trial. He further contends the claim may be raised on direct appeal because "there is no possible legitimate tactical reason for counsel's failure to have objected." The trial court is directed to prepare and distribute as appropriate an amended abstract of judgment reflecting the specified modifications of judgment.
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