Opinion
A147546
08-22-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD GRAHAM III, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR217618)
Defendant Richard Graham III was convicted by jury of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), and the trial court found he had sustained a prior "strike" conviction (§§ 667, subds. (b)-(i), 1170.12). The court imposed a four-year prison sentence, and Graham appealed. His appointed appellate counsel filed a brief asking this court to conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel also informed Graham of his right to file a supplemental brief, but Graham did not file one. We have reviewed the record, find no issues that require briefing, and therefore affirm.
Undesignated statutory references are to the Penal Code.
In light of some discrepancies between the judgment announced by the trial court and the abstract of judgment prepared by the trial court clerk, we will order the preparation of an amended abstract that conforms to the judgment.
I. BACKGROUND
A. The Charges Against Graham
Graham was charged by information with four offenses: (1) being a felon in possession of a concealed firearm in a vehicle, a .22 handgun, capable of being concealed upon the person (§ 25400, subd. (a)(1)) (Count 1); (2) being a felon in possession of a concealed firearm in a vehicle, a shotgun, capable of being concealed upon the person (§ 25400, subd. (a)(1)) (Count 2); (3) being a felon in possession of a firearm, a .22 handgun (§ 29800, subd. (a)(1)) (Count 3); and (4) being a felon in possession of a firearm, a shotgun (§ 29800, subd. (a)(1)) (Count 4). The information alleged Graham had a prior "strike" conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
B. The Motion to Suppress and Other Pretrial Motions
After the initial filing of a felony complaint alleging the above offenses, Graham moved to suppress evidence (including firearms and ammunition) found by police after a traffic stop and subsequent search of the car Graham had been driving. Graham contended the evidence was obtained as the result of an unlawful detention. The court heard the motion at the preliminary hearing.
Andrew Bates, a police clerk for the Vallejo Police Department, is the custodian of records for dispatch recordings. A Computer Aided Dispatch (CAD) report reflects telephone calls that come into the 911 center; the dispatcher types while he or she listens to the call. Bates brought to the preliminary hearing the CAD report for an incident on April 12, 2013, which shows two phone calls to 911.
At about 6:27 p.m., a woman called and stated there was an African-American male adult wearing a white shirt, with a white female adult wearing a white-black shirt, at 100 Plaza Drive, which is in a shopping center, and they had just left in an older brown Oldsmobile. The caller gave a callback number. The caller stated the man had been running in the parking lot with a gun. The car was now traveling from the southern to the northern part of the shopping center.
A second call came in at 6:28 p.m., from another woman at the same location. The CAD report showed a callback number for her. The caller reported seeing an Hispanic male adult, with a white shirt, jeans, and a gun; she could not provide any further information. The information from the calls was dispatched to officers at about 6:27 p.m.
Officers Joseph McCarthy and Steven Fowler, who were driving separate police vehicles, both heard dispatches about a disturbance in the Plaza Drive area and responded to that location. Officer Fowler's recollection was that there were two African-American males involved, one chasing another with a gun through the parking lot. One male was associated with a brown older-model Oldsmobile, while the other car was a black vehicle of some kind. Officer McCarthy similarly heard a report stating a man with a gun had been chasing another person in the parking lot; the report described an older brown Oldsmobile fleeing the area.
As Officer Fowler was traveling northbound on Admiral Callaghan toward Turner Parkway, he saw a 1977 Oldsmobile Cutlass Supreme, also heading northbound on Admiral Callaghan. Officer Fowler caught up to the Oldsmobile, and as he passed it, he saw one occupant, the driver, whom he identified in court as Graham. From the rear, the car was white and brown. The car had two large brown stripes on the trunk lid and on the roof, and the hood was missing; Officer Fowler did not recall a large orange racing stripe on the side. After passing Graham, Officer Fowler saw in his rearview mirror that Graham, who was in the far left lane of Admiral Callaghan, made a right turn onto Auto Club Way. Officer Fowler believed this was an illegal right turn in violation of Vehicle Code section 22100, subdivision (a).
Officer McCarthy heard by radio that Officer Fowler was attempting to catch up to a vehicle matching the description given in the dispatch, and was in the parking lot of Red Lobster, which is a block away from where the disturbance took place.
At one point Officer McCarthy asked other officers to stop another vehicle that he thought might be involved.
Officer McCarthy saw a brown Oldsmobile exiting the Black Angus parking lot onto Plaza Drive, which is "where the incident took place." Officer McCarthy testified he began following the vehicle, with Officer Fowler behind him, and they followed the Oldsmobile into the parking lot of Ross, where they conducted a traffic stop.
Graham was alone in the car. Graham had a wad of what appeared to be counterfeit currency hanging out of his pocket, and there were some similar bills on the passenger side floorboard. The bills were discolored and appeared to be photocopied. The officers examined the bills and determined they were counterfeit.
Officer McCarthy did not recall what color shirt Graham was wearing when he was stopped; he believed it was a lighter color.
Officer McCarthy asked Graham for his driver's license, registration, and insurance, but Graham did not have any of those items. The officers ran Graham's name through dispatch and found he had a felony warrant for absconding from parole. The officers arrested and handcuffed Graham.
Officers McCarthy and Fowler searched the car Graham had been driving. They found a handgun in a bag on the floorboard behind the driver's seat. They also found a sawed-off shotgun under a jacket on the floorboard behind the passenger seat.
Officer McCarthy later interviewed Graham at the Vallejo Police Department. Graham said he was on his way to help his girlfriend out; she had run out of gas at Admiral Callaghan and Redwood. Graham said he was armed because some people were after him.
In his motion to suppress, Graham challenged only the validity of the initial detention, i.e., the traffic stop. The court denied the motion to suppress, finding the officers had reasonable suspicion to stop the car. The court stated the older Oldsmobile that Graham was driving was somewhat "distinctive" and matched the "general description" of the car provided in the 911 call. These factors, along with "proximity of time and location," justified the stop. Alternatively, the court found the stop was proper because Officer Fowler (whom the court found credible) observed Graham making an illegal right turn.
After denying the motion to suppress and concluding the preliminary hearing, the court ordered that Graham be held to answer the charges in the complaint. The district attorney then filed an information. The court later denied Graham's motion to set aside the information (§ 995), which was based on the allegedly illegal detention.
In a separate motion in limine, Graham sought to exclude the statement he made at the police station, contending he did not waive his Miranda rights. The court denied the motion, concluding Graham impliedly waived his rights. The court, after reviewing a video and transcript of the interview, stated Graham nodded his head up and down when the officer gave the advisements and asked Graham if he understood his rights. And when the officer then started asking questions, Graham answered them.
Miranda v. Arizona (1966) 384 U.S. 436.
C. The First Trial
The first trial ended when the court granted a mistrial. The court had ruled in limine that hearsay information about a report of a man with a gun was inadmissible, but one of the officers testified that, when he first made contact with Graham, he was responding to a call about a man with a gun.
D. The Evidence Presented at the Second Trial
At the second trial, Officers McCarthy and Fowler testified about the traffic stop and the search of the car Graham was driving. The officers found a sawed-off shotgun covered by a jacket on the floorboard behind the passenger seat. They found a handgun in a backpack behind the driver's seat. Officer McCarthy also testified about his interview with Graham, and a redacted recording of the interview was played for the jury.
The court reporter did not transcribe the recording that was played for the jury, and the recording is not part of the appellate record. A transcript of the recording was distributed to the jury to follow along while the recording was playing, but the transcript was not admitted into evidence. According to the transcript (which has been provided to this court as an augmentation to the appellate record), Graham stated he had the shotgun because people were coming by his house and threatening him. Graham stated he had had the shotgun for about a week.
Officer McCarthy asked for permission to search Graham's house; Graham agreed and gave them an address on Erin Drive in Vallejo. Officers McCarthy and Fowler and another officer went to the house, where they found shotgun shells similar to shells they had found in the car Graham was driving. In the same bedroom where they found the shells, the officers found "paperwork, indicia" with Graham's name on it.
Shelley Lopez testified for the defense. Lopez testified that, on April 12, 2013, she was the registered owner of the 1977 Oldsmobile Cutlass Supreme depicted in certain photos that were trial exhibits. A rosary (apparently found in the car) belonged to her. Graham is Lopez's boyfriend. Graham is not Catholic.
Defense counsel initially told the court Lopez would testify that the Oldsmobile and the guns were hers. The court noted that it would be illegal for Lopez to own a sawed-off shotgun, and the court therefore appointed counsel to represent Lopez to protect her Fifth Amendment rights. After that, Lopez, on the advice of her counsel, stated to the court (out of the presence of the jury) that she would testify that she was the registered owner of the car, but that she would invoke her Fifth Amendment right to remain silent as to questions about the firearms and ammunition. Counsel therefore did not question her about those issues before the jury.
On April 12, 2013, Lopez lived at the Erin Drive house with roommates. Lopez was present in the house when the officers found ammunition there. Graham did not live with her at the time. She and Graham were fighting at the time.
In rebuttal, Officer McCarthy testified that he spoke with Lopez when the officers searched the home, and she told him that Graham stayed in the room where they found the ammunition. Lopez also said she was in the process of moving out in an attempt to leave Graham. E. The Jury Verdict, the Bench Trial on the Prior, and the Sentence
The jury found Graham guilty of being a felon with a firearm (the shotgun) (Count 4), and not guilty on the remaining counts. The court, sitting without a jury and based on documentary evidence, found true the allegation Graham had sustained a prior strike conviction, a 2000 conviction for robbery (§ 211).
Graham later filed a motion to withdraw his no contest plea to the prior robbery charge on the ground he was not properly advised of the potential future consequences of that plea. Graham also filed a motion to dismiss his prior strike (see § 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497). The court denied both motions.
The court sentenced Graham to the middle term of two years, doubled because of the prior strike conviction, for a total term of four years in state prison. Graham appealed.
II. DISCUSSION
We have reviewed the record on appeal and conclude there are no meritorious issues to be argued. Substantial evidence supports the conviction. Graham was effectively represented by counsel. We find no error in the court's rulings, including its denial of the motion to suppress, its rulings on other evidentiary questions, its instructions to the jury and its sentencing decisions. We conclude there are no arguable issues within the meaning of Wende, supra. (See also People v. Kelly (2006) 40 Cal.4th 106.)
There are, however, some discrepancies between the judgment orally pronounced by the trial court and the abstract of judgment prepared by the trial court clerk. We will order the abstract corrected to conform to the judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)
First, as noted, the court imposed a total term of four years in state prison. The court arrived at that sentence by imposing the middle term of two years for Graham's current conviction of possession of a firearm by a felon (§ 29800, subd. (a)(1)), and then doubling that term pursuant to the three strikes law (§§ 667, subds. (b)-(i), 1170.12) because of Graham's prior "strike," i.e., his prior conviction for robbery (§ 211), an offense that is statutorily designated as both a "violent felony" and a "serious felony" (§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(19)).
The abstract correctly reflects the total four-year sentence imposed by the court. But the way the form is completed suggests the entire four-year term was imposed as the middle term for Graham's current conviction for possession of a firearm by a felon (§ 29800, subd. (a)(1)), rather than showing the two-year midterm was enhanced (doubled) due to a prior conviction. Moreover, a box checked on the abstract appears to state the current offense (firearm possession by a felon) is itself a statutorily-designated "serious felony." It is not (§ 1192.7, subd. (c); People v. Brimmer (2014) 230 Cal.App.4th 782, 792), and the trial court did not state it was. The amended abstract should reflect that the court (1) imposed the two-year midterm for the current offense (which is not a serious or violent felony), and (2) doubled that term because of Graham's prior strike.
Second, the court imposed a $280 restitution fine (§ 1202.4, subd. (b)) and a $280 parole revocation restitution fine (§ 1202.45), with the latter fine stayed pending successful completion of parole. The abstract does not reflect the imposition of these fines; the amended abstract should reflect them.
Third, the court did not order restitution to any victim. (See § 1202.4, subd. (f).) It also appears from the reporter's transcript of the sentencing hearing that the court did not reserve jurisdiction over the issue of restitution (although the court began to state it would do so). The court stated: "I'll reserve—there should be no restitution." Both the minute order prepared by the clerk and the abstract of judgment, however, state: "Court reserves jurisdiction over restitution." We will direct this statement be deleted from the amended abstract.
Finally, the abstract incorrectly states the court pronounced sentence on February 9, 2016. The sentencing occurred on February 8, 2016.
III. DISPOSITION
The clerk of the trial court is directed to prepare an amended abstract of judgment that reflects the following:
1. Graham's total prison sentence of four years is composed of (1) the two-year midterm for possession of a firearm by a felon (§ 29800, subd. (a)(1)), which is not a serious or violent felony, and (2) an additional two years, resulting from doubling the two-year term because Graham has a prior strike (§§ 667, subds. (b)-(i), 1170.12).
2. The court imposed a $280 restitution fine (§ 1202.4, subd. (b)) and a $280 parole revocation restitution fine (§ 1202.45), with the latter fine stayed pending successful completion of parole.
3. The court did not reserve jurisdiction over restitution.
4. The sentence was pronounced on February 8, 2016.
The clerk of the trial court is directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
As so modified, the judgment is affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Schulman, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------