Opinion
A158499
12-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JEROME MARKEL DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. NF439837A)
Appellant Jerome Markel Davis (Appellant) appeals from a judgment following his no contest plea to a charge of robbery (Pen. Code, § 212.5, subd. (c)). Appellant's counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) We have reviewed the record, find no arguable issues, and affirm.
All undesignated statutory references are to the Penal Code.
BACKGROUND
On August 13, 2019, an amended felony information was filed charging Appellant with robbery (§ 212.5, subd. (c)) and attempted robbery (§§ 212.5, subd. (c), 664). Both counts alleged Appellant personally used a firearm during the commission of the offenses (§ 12022.53, subd. (b)) and Appellant was ineligible for probation (§ 1203, subd. (e)(1)). The charges were based on an April 2015 robbery at a restaurant in South San Francisco.
Among other things, Appellant moved before trial to exclude prior convictions, to exclude fingerprint evidence, to dismiss for delay in prosecution, and to dismiss because evidence was not preserved. The trial court denied those motions in whole or in part. The trial court granted the prosecution's motion to amend the information to change the enhancements on the two counts from section 12022.5, subdivision (a) to section 12022.53, subdivision (b).
On August 14, 2019, Appellant pled no contest to the robbery charge. The parties stipulated to a two-year prison term to be served concurrently with the sentence in Sacramento County case number 15F02816. Appellant was sentenced accordingly.
Appellant filed a notice of appeal and sought a certificate of probable cause based on the granting of the prosecution's motion to amend the information and the four pre-trial motions referenced above. The trial court granted the request for a certificate of probable cause.
DISCUSSION
We have reviewed the entire record and have found no arguable appellate issues. Following a period of self-representation properly approved by the trial court, Appellant was adequately represented by legal counsel.
The trial court did not err in granting the prosecution's August 2019 motion to amend the information or in denying Appellant's pre-trial motions, including those specified in the request for a certificate of probable cause. For example, the court properly denied Appellant's motion to dismiss for failure to preserve evidence (video of the robbery and a 9-1-1 call log) because Appellant failed to show the evidence had "exculpatory value that was apparent" before it was destroyed. (People v. Chism (2014) 58 Cal.4th 1266, 1300; see also California v. Trombetta (1984) 467 U.S. 479.)
Appellant completed a plea form that described the constitutional rights he was waiving by entering a no contest plea, the trial court went over those rights with Appellant, and the court found Appellant freely and intelligently waived those rights. Defense counsel stipulated there was a factual basis for the plea.
The trial court's sentence was consistent with the plea agreement. The fines and fees imposed by the court were proper.
Appellate counsel advised Appellant of his right to file a supplemental brief to bring to this court's attention any issue he believes deserves review. (See People v. Kelly (2006) 40 Cal.4th 106.) Appellant did not file a supplemental brief. There are no legal issues that require further briefing.
DISPOSITION
The trial court's judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
BURNS, J. /s/_________
REARDON, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------