P. v. Pierce

Filed 1/31/07  P. v. Pierce CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

            APPEAL from a judgment of the Superior Court of Los Angeles County.  Arthur  M. Lew, Judge.  Dismissed.

________

            Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.

            No appearance for Plaintiff and Respondent.

_________

            After a preliminary hearing and a discovery motion and pursuant to a plea bargain, Gerald Pierce pleaded no contest to possessing phencyclidine (PCP) for sale in exchange for a 5-year upper term sentence.  (Health & Saf. Code, § 11378.5.)  As part of the plea bargain, the court dismissed two other counts (transporting PCP (Health & Saf. Code, § 11379.5, subd. (a)) and evading police while driving with willful disregard for others (Veh. Code, § 2800.2, subd. (a))) and dismissed additional allegations that Pierce committed the crime while on bail for another crime and had a prior drug-related felony conviction.  (Pen. Code, § 12022.1; Health & Saf. Code, § 11370.2, subd. (b).)  Also as part of the plea bargain, the court ordered the sentence to run concurrently with that imposed for another drug-related conviction.

            The preliminary hearing transcript disclosed that police officers attempted to stop a car driven by Pierce after they saw it weave over double yellow lines into an on-coming lane and noticed that its registration tabs were expired.  Pierce failed to yield despite the officers' use of their patrol car's emergency lights and siren.  As the officers chased Pierce, they saw him empty the contents of two nearly full plastic bottles onto the street and discard the empty bottles.  During the chase, Pierce crossed over double lines into on-coming traffic.  Pierce eventually slowed down and jumped from his car while it was still moving, discarding a third plastic bottle as he did so.  His car crashed into a parked vehicle.  The officers recovered the third bottle and noted that its contents, the interior of Pierce's car, and the liquid he had poured out during the chase all smelled like PCP.  Chemical tests on the recovered bottle and swabs of the car's interior disclosed PCP.  A police drug expert opined that, based on the quantity, Pierce possessed PCP for sale.  (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)

            Pierce appealed.  The court denied his request for a certificate of probable cause which we presume was based on the allegations in the notice of appeal.  (Pen. Code, § 1237.5.)^[1]  We appointed counsel to represent him on this appeal.  After reviewing the record, counsel filed a brief raising no issues and asking us independently to review the record under People v. Wende (1979) 25 Cal.3d 436.  On November 27, 2006, we advised Pierce that he had 30 days within which to submit any issues he wished us to consider.  To date we have received no response.

            We have examined the entire record and are satisfied that Pierce's attorney has fully complied with her responsibilities and that no arguable issues exist.  (People v. Wende, supra, 25 Cal.3d at p.  441.)  Because Pierce failed to obtain a certificate of probable cause, his appeal is dismissed.

            NOT TO BE PUBLISHED.

                                                                                    ROTHSCHILD, J.

We concur:

            VOGEL, Acting P.J.

            JACKSON, J.^*

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^[1]           In his notice of appeal, Pierce alleged without factual support that his trial counsel did not further his interests, failed to file a notice of appeal or challenge the plea bargain, and failed to file several motions in the trial court, including a demurrer and motions for Pitchess discovery (Pitchess v. Superior Court (1974) 11 Cal.3d 531), to dismiss for insufficient evidence (Pen. Code, § 995), to suppress (Pen. Code, § 1538.5), for return of property and transcripts on appeal, and challenging â€