Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08600620, W. Kent Hamlin, Judge.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.
FACTS AND PROCEEDINGS
Pleading
On May 23, 2008, appellant, Hi Nong Vue, was charged in an information with felony assault on a peace officer (Pen. Code, § 245, subd. (c), count one) and felony evasion of a peace officer (Veh. Code, § 2800.2, subd. (a), count two). The information alleged two prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise noted, all statutory references are to the Penal Code.
The preliminary hearing was conducted on May 14, 2008. Deputy Greg Little of the Fresno County Sheriff’s Department testified that on April 7, 2008, he activated his lights to stop appellant and exited his patrol car. Although appellant initially stopped, when Little exited his car appellant accelerated past him. Deputy Rusche of the Fresno County Sheriff’s Department pursued appellant. The driver then proceeded through stop signs and drove at high rates of speed in excess of 80 miles per hour reaching as high as 100 miles per hour. Two juveniles were in the car with appellant.
Suppression Motion
On June 5, 2008, appellant filed a motion to suppress evidence of his identity after his arrest. On June 19, 2008, Deputy Robert Rusche testified that at 11:10 a.m. on April 7, 2008, he was dispatched to pursue a blue Honda that sped away from the end of Smith Avenue. The car failed to stop at stop signs, went through a red light without slowing or stopping, and drove at an excessive speed. Rusche was unable to apprehend the car.
Deputy Greg Little testified that he responded to a location at the end of Smith Avenue, which he described as a narrow winding road with access to the river. Little saw a small, blue Honda. There were two other sheriff’s units at the location. The Honda was moving toward Little’s patrol car traveling down the middle of the road. Little activated his overhead lights, moved to the center of the road, and exited his patrol car. As Little approached the Honda, the driver accelerated it toward Little. Little believed the driver was trying to run him over.
Deputy Little took some quick steps back and drew his weapon. The driver of the Honda swerved so as not to hit Little, so Little did not fire his gun. Little identified appellant as the driver of the Honda. The other two deputies pursued appellant. Little explained that appellant was improperly parked in the middle of the road. Appellant should have parked on the side of the road even though appellant was parked near a cul-de-sac. There were homes on both sides of the road next to the cul-de-sac. The road was paved asphalt, not a dirt road. The trial court found that even if Deputy Little’s activation of his lights was a show of authority and a brief detention, appellant could not respond by recklessly fleeing the scene. The court denied appellant’s suppression motion.
Change of Plea
On July 17, 2008, appellant entered into a plea bargain. Appellant would admit the felony evasion of a peace officer allegation (count two) and an amended allegation of felony endangerment of minors (§ 273a, subd. (a), count three). Appellant would admit two prior prison term enhancements. Appellant would receive the midterm of two years on count two plus one year for the enhancement for a lid prison sentence of three years. Appellant’s sentence on count three would be served concurrently. The court explained count one would be dismissed and the court would strike the remaining enhancement.
Appellant executed a felony advisement, waiver of rights, and plea form acknowledging the terms of the plea agreement and his waiver of his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. Appellant also acknowledged a factual basis for his plea.
The court reviewed the terms of the plea agreement with appellant and amended the information by interlineation to add the child endangerment allegation. The court asked if appellant understood that he was waiving his constitutional rights as set forth in the advisement form. Appellant replied affirmatively. Appellant pled no contest to counts two and three. Appellant admitted two prior prison term enhancements. The court dismissed count one.
Sentencing
On August 14, 2008, the court sentenced appellant to a two-year prison term on count two plus a consecutive one-year term for the prior prison term enhancement. The court made appellant’s sentence on count three concurrent. The court imposed a restitution fine and granted applicable custody credits. Appellant’s notice of appeal was filed on August 15, 2008 and did not include a certificate of probable cause.
Although the trial court said it was staying the second prison term enhancement, this enhancement does not appear in the abstract of judgment. At the change of plea hearing, the court explained to appellant that the second prison term enhancement would be stricken pursuant to the plea agreement. The court apparently misspoke when it said it was staying the prison term enhancement.
Appellate Court Review
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on January 23, 2009, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.