Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Norm Shapiro, Judge, No. BA329454
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CROSKEY, Acting P. J.
Cagney Styles McPhan appeals from the judgment entered following revocation of probation granted after his plea of guilty to carrying a loaded firearm in a public place. (Pen. Code, § 12031, subd. (a)). After being arrested for grand theft of an automobile (§ 487, subd. (d)(1)), McPhan admitted he was in violation of probation. Pursuant to a negotiated agreement, the trial court sentenced McPhan to time served in county jail, then ordered him released on felony parole. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the transcript of the preliminary hearing.
At approximately 8:15 p.m. on September 21, 2007, Los Angeles Police Officer Stephen McClean saw McPhan, a member of the Rollin’ 60’s gang, walking with another individual in the vicinity of Brynhurst Avenue and 58th Street. A memorial service for a Rollin’ 60’s gang member who had been killed was being held that day at a location approximately one mile from the intersection. As McPhan was on probation and subject to search at any time, the officer stopped and approached him. A search of McPhan revealed a fully loaded semiautomatic.25 caliber Baretta handgun in his right front pants pocket. After the officer found the gun in his pocket, McPhan “broke free of [the officer’s] grasp and fled southbound on Brynhurst and then eastbound on 58th Place.” At that point McClean lost sight of McPhan.
Approximately one and one-half hours later, McPhan was taken into custody on 59th Place, one block south of where he had been searched. After McClean’s partner, Officer Paul Fedynich, read to McPhan his Miranda rights, McPhan indicated that he was willing to talk to the officers. He told McClean that he had bought the gun for $150 and that he carried it for self-protection and “to protect the hood during the memorial service.” The officers transported McPhan to the police station, where he refused to make or sign a written statement.
Miranda v. Arizona (1966)384 U.S. 436.
Officer Fedynich, had been assigned to “gang enforcement detail” for the prior 13 months and had qualified as a gang expert approximately 12 times. Fedynich was present when Officer McClean found the firearm on McPhan. Fedynich indicated that McPhan’s gang moniker is “Lil Ray Dog” and verified that he is a member of the Rollin’ 60’s gang. When he was stopped by the police officers, McPhan, who also had “alcohol on his person,” was going “to mourn with the rest of his gang and, in doing so, [had armed himself] to protect that service [that was] going on.” According to Fedynich, enemy gang members will often drive by such a service in order to “take advantage of their enemies while they [are] down.”
2. Procedural History.
In an amended information filed on December 13, 2007, McPhan was charged with carrying an unregistered, loaded firearm in violation of section 12031, subdivision (a)(1). The charge was treated as a felony as it was also alleged McPhan carried the firearm for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)).
The trial court denied McPhan’s November 9, 2007, motion to set aside the information (§ 995). Instead, at proceedings held on December 13, 2007, defense counsel indicated that an agreement between McPhan and the prosecutor had been reached. McPhan was to plead guilty or no contest to count one “for a grant of probation with one year to be served in county jail,” then placed on felony probation for a period of three years. The prosecutor indicated that, although McPhan was not going to be admitting the gang allegation, as a condition of probation the trial court was going to require that McPhan “stay away from the gang – that means the Rolling 60’s – and not to have any contact with the individuals [in the gang].” The prosecutor continued, addressing McPhan and stating, “So if you are caught associating with the gang members, then that’s going to be a violation of your probation.” The trial court added: “And, Mr. McPhan, let me just [add], what [the prosecutor] is saying is, once you’re on probation here – and this happens from time to time – the police are watching, and if they see you with gang members, they are going to arrest you, and they are going to bring you back to court, and they are going to allege that you were in contact and in association with gang members. And that’s going to lead to a violation, which could be more jail time or even a state prison sentence. [¶] You have to be very careful of who you associate with.” McPhan indicated he understood the conditions of probation.
After waiving his right to a court or jury trial, his right to confront and cross-examine the witnesses against him, the right to subpoena witnesses and present a defense, and his privilege against self-incrimination, McPhan pleaded guilty to “carrying a loaded firearm that was not registered in violation of... section 12031[, subdivision] (a)(1).” The trial court accepted the plea, finding that “the waivers [were] knowingly, intelligently, and voluntarily entered into....”
The trial court suspended imposition of sentence and placed McPhan on felony probation for a period of three years under various terms and conditions, including service of one year in county jail. McPhan was awarded presentence custody credit for 84 days actually served and 42 days of good time/work time, for a total of 126 days. The trial court imposed a $200 restitution fine (§ 1202.4, subd. (b)) and a $20 court security fee (§ 1465.8, subd. (a)(1)), then dismissed all remaining counts and allegations.
At proceedings held on December 12, 2008, the trial court revoked McPhan’s probation after indicating that he had been arrested for the crime of grand theft of an automobile (§ 487, subd. (d)(1)).
At proceedings held on February 18, 2009, it was determined that McPhan had spent 494 days in custody. This, the court and prosecutor determined, was enough time to cover a low term sentence for unlawfully carrying a loaded firearm in a public place (§ 12031, subd. (a)(1)). Under these circumstances, the trial court indicated that, if McPhan admitted he was in violation of the terms of his probation, it would “do an immediate release to parole.” McPhan waived his right to a hearing and admitted he was in violation of the terms of his probation in that he had been arrested for grand theft of an automobile. Based on his admission, the trial court found McPhan to be in violation of his probation and imposed a term in jail which McPhan had already served. The trial court found that “the credits [were] 365 initially plus 86 additional credits for actual time served, 43 for good-time, work-time for a total of 129. 129 plus 365 comes to 494, which is sufficient time on a low term commitment.” Accordingly, the trial court ordered McPhan released from custody and directed him to report to his parole officer within 48 hours. The trial court indicated that the restitution fine of $200 was still in effect and, in addition, it ordered a stayed $200 parole revocation restitution fine (§ 1202.45).
McPhan filed a timely notice of appeal and request for certificate of probable cause on April 17, 2009. In his request for a certificate of probable cause, McPhan asserted his counsel had been ineffective and his due process rights violated. Specifically, he stated: “Defendant now has a Parolee number, must report to a parole officer and can not find work due to this parolee status.” The trial court granted the request for a certificate of probable cause on May 8, 2009.
This court appointed counsel to represent McPhan on appeal on July 1, 2009
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed July 30, 2009, the clerk of this court advised McPhan to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J., ALDRICH, J.