Opinion
A167285
04-19-2024
THE PEOPLE, Plaintiff and Respondent, v. WAHEED T. KESMATYAR, Defendant and Appellant.
NOT TO BE PUBLISHED
Marin County Super. Ct. Nos. SC219407A, SC209450A
Richman, Acting P. J.
In 2020, Defendant Waheed Kesmatyar pleaded guilty to one count of second-degree burglary and was placed on three years probation. The prosecution twice petitioned to revoke that probation, and while those petitions were pending, Kesmatyar was convicted by a jury in July 2022 of possession of a firearm by a felon and possession of ammunition by a felon. The trial court terminated Kesmatyar's probation and sentenced him in both cases to an aggregate term of two years, eight months. Kesmatyar appeals from the judgment of conviction and from the order terminating his probation. His court-appointed counsel has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende) to determine if there are any arguable issues that require briefing. Counsel advised Kesmatyar of his right to file a supplemental brief, and he did not do so. We have independently reviewed the record in accordance with our Wende obligations and find no meritorious issues. We thus affirm.
BACKGROUND
Case No. SC209450A
On January 31, 2020, the Marin County District Attorney filed a first amended complaint alleging that on June 29, 2019, Kesmatyar committed felony first-degree burglary (Pen. Code, § 459) (count one), felony second-degree burglary (§§ 459, 460, subdivision (b)) (count two), and misdemeanor resisting, delaying, or obstructing a police officer (§ 148, subdivision (a)(1)) (count three). That same day, Kesmatyar entered into a plea agreement whereby he agreed to plead guilty to count two and to waive his right to withdraw his plea under People v. Cruz (1988) 44 Cal.3d 1247 and People v. Vargas (1990) 223 Cal.App.3d 1107 in exchange for a maximum three-year term and the dismissal of counts one and three.
All undesignated statutes are to the Penal Code.
On February 19, pursuant to the plea agreement, the trial court dismissed counts one and three, suspended imposition of sentence, and placed Kesmatyar on formal supervised probation for three years. Kesmatyar was ordered to serve 168 days in county jail, with 168 days credit for time served.
On November 8, 2021, the prosecution filed a petition for revocation of Kesmatyar's probation, alleging that between October 5 and November 7, 2021, he violated the terms of his probation in eight particulars:
(1) possessing drug paraphernalia (Health & Saf. Code § 11364, subd. (a)), (2) loitering (§ 647, subd. (h)), (3) damaging the lock to a door (§ 594, subd. (b)(2)(A)), (4) resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1)), (5) possessing drug paraphernalia (Health &Saf. Code § 11364, subd. (a)), (6) possessing methamphetamine (Health & Saf. Code § 11377,
subd. (a)), (7) being intoxicated in public (§ 647, subd. (f)), and (8) assaulting Travis White with a deadly weapon (§ 245, subd. (a)(1)).
On January 4, 2022, the prosecution filed a second petition for revocation of Kesmatyar's probation, alleging that he violated its terms on December 28, 2021 by (1) possessing suboxone (Health &Saf. Code § 11350, subd. (a)), and (2) possessing suboxone in the Marin County jail (§ 4573.6).
Case No. SC219407A
On June 6, 2022, the Marin County District Attorney filed an information charging Kesmatyar with the April 16, 2022 possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count one), possession of ammunition by a felon (§ 30305, subd. (a)(1)) (count two), taking or driving a vehicle without the owner's consent (Veh. Code § 10851, subd. (a)) (count three), and corporal injury on Jane Doe (§ 273.5, subd. (a)) (count four). The information alleged that Kesmatyar committed counts one and three while on bail in violation of section 12022.1, subdivision (b).
On July 11, 2022, the trial court granted the defense motion to sever count three and on July 14 the prosecution filed an amended information designating the corporal injury count as count three and the taking or driving a vehicle without the owner's consent count-which had been severed- as count four.
Trial took place on counts one through three on July 15, 18, and 19. Novato Police Officer Adrian Roman testified that on April 16, 2022, at approximately 1:55 a.m., he and Officer Taylor Barnes responded to a report of a domestic dispute in Room 101 at the America's Best Value Inn in Novato, California. When Officer Roman arrived, he saw a Black or Hispanic man wearing a black jacket "pacing back and forth near the room." At his feet was a black "plastic, grocery-style" bag. When the officers attempted to contact the man, he quickly walked away from them, ignored their commands to stop, and disappeared from their vision. Officer Roman subsequently searched the black bag and found a firearm with one bullet inside the magazine and one inside the chamber. He discussed the firearm with Jane Doe in Room 101, who "said that was indeed the firearm that Kesmatyar showed her [o]n the bus." Da-Shing Peng, a criminalist at the Contra Costa County Sherriff's crime lab, testified that there was "very strong support" for the conclusion that DNA found on the gun matched Kesmatyar's DNA.
Jane Doe did not testify, but a body camera video of certain of her statements to Officer Roman at the scene was played for the jury. Kesmatyar did not testify, and the defense did not present any evidence.
On July 19, the jury found Kesmatyar guilty on counts one and two, and not guilty on count three.
On July 22, the prosecution filed a third petition for revocation of Kesmatyar's probation in Case No. SC209450A, alleging, in part, that he had violated its terms by engaging in the conduct found by the jury in Case No. SC219407A.
On September 1, the defense filed a motion for mistrial and a new trial on the ground of prosecutorial error, based on the prosecutor's allegedly having told the jury during closing argument that Kesmatyar could be found guilty if "he merely touched the gun." On December 2, the prosecution filed opposition, and on December 8, the defense filed a reply. The trial court held a hearing on the motion on December 27, at the conclusion of which it denied the motion.
On January 6, 2023, the trial court held a hearing on the petitions for revocation of Kesmatyar's probation. Marin County Sherriff's Deputy Ian McCullough testified that conducted a search of Kesmatyar's jail cell on December 28, 2021 and found "three examples" of suboxone: "[T]wo . . . were found in envelopes" and "one . . . was just on a piece of paper buried under some hot chocolate packets." Kesmatyar told Deputy McCullough that he "was only holding [the suboxone] for a friend." That same day, Deputy McCullough saw another inmate approach Kesmatyar and tell him "[t]hat shit didn't work. You owe me [$25]."
San Rafael Sergeant Michael Mathis testified that on November 7, 2021, at approximately 10:26 a.m., he responded to a report of "an unwanted person" at the Support Service Area in San Rafael. As he was driving to the location, he saw Kesmatyar-whom he recognized from previous contacts- chasing Travis White and "jabbing" at him with "a large stick."
Marin Police Detective Joshua Hamilton testified that on October 5, 2021, he responded to a report of "a transient . . . trespassing" on Sir Francis Drake Boulevard in San Anselmo. Upon arrival, he saw Kesmatyar-whom he recognized from previous contacts-"loitering about the front of the apartment complex." Detective Hamilton conducted a search of Kesmatyar, during which he found a glass methamphetamine pipe in Kesmatyar's front left pocket.
At the conclusion of the hearing, the trial court sustained the allegation that Kesmatyar unlawfully possessed drug paraphernalia on October 5, 2021 and committed an assault against Travis White on November 7, 2021, and thereby violated his probation.
On January 20, the trial court sustained the allegations from the January 4 petition that Kesmatyar possessed suboxone in jail.
Sentencing took place in both cases on February 1. In Case No.SC219407A, the trial court designated count one as the principal term and sentenced Kesmatyar to the middle term of two years on both counts one and two, to run concurrently. On the prosecution's motion, the court dismissed count four. In Case No. SC209450A, the trial court terminated probation and sentenced Kesmatyar to the middle term of two years, and stayed 16 months and imposed 8 months pursuant to section 1170.1, to be served consecutively to the sentence in Case No. SC219407A. The total aggregate sentence was two years, eight months. Kesmatyar had 1053 days of custody credit.
The court initially imposed restitution fines of $300 in both cases (§ 1202.4), with corresponding parole revocation restitution fines of $300 (§ 1202.45), suspended unless parole was revoked, a $90 criminal conviction fee (Govt. Code § 70373), and a $120 court operations assessment fee (§ 1465.8). But because Kesmatyar had over-served his sentence by approximately 100 days, the trial court waived all fees and assessments.
Kesmatyar filed a notice of appeal from the judgment and the order terminating his probation.
DISCUSSION
We have reviewed the record on appeal for any arguable issues.
The trial court did not abuse its "great discretion" in concluding that Kesmatyar had violated the terms of his probation in Case No. SC209450A. (See People v. Rodriguez (1990) 51 Cal.3d 437, 445.) Substantial evidence supports the trial court's conclusion that he did in fact violate those terms. (See People v. Buell (2017) 16 Cal.App.5th 682, 687.)
At trial in Case No. SC219407A, Kesmatyar was represented at all times by competent counsel who zealously guarded his rights and interests. In fact, defense counsel persuaded the jury to acquit Kesmatyar of the charge that he committed corporal injury on Jane Doe.
The jury was properly instructed. In particular, the jury was instructed, pursuant to CALCRIM No. 2511, that "[a] person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person." Upon review of the transcript of closing argument, we agree with the trial court that the prosecutor did not make any prejudicial misstatement of the law.
The jury's verdict was supported by substantial evidence. The sentence imposed was authorized by law.
As noted, the trial court orally waived all fines, fees, and assessments. However, the abstract of judgment reflects imposition of the restitution fines, criminal conviction fee, and court operations assessment fee. This error seems to have been clerical in nature. We will order the abstract of judgment correct to reflect that these fines and fees are waived. (See People v. Mitchell (2001) 26 Cal.4th 181, 188.)
Our independent review having found no arguable issues that require briefing, the judgment of conviction and the order terminating probation are affirmed.
DISPOSITION
The abstract of judgment is ordered amended to reflect that the restitution fines, criminal conviction fee, and court operations assessment fee are waived. The court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment and order terminating probation are affirmed.
We concur: Miller, J., Mayfield, J. [*]
[*]Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.