Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. Nos. SC058310A & SC065280A
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.
Ernesto Andres Arroyo appeals from a judgment of conviction in case number SC065280A and the revocation of his probation in case number SC058310A. His court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable issues and affirm.
I. FACTS AND PROCEDURAL HISTORY
On March 24, 2004, appellant pled no contest to possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a). The court suspended imposition of sentence and placed him on three years of felony probation. Probation was revoked and reinstated in November 2005 following appellant’s admission that he had possessed a magazine loaded with nine millimeter ammunition.
On December 31, 2007, an information was filed in case number SC065280A charging appellant with three felony counts: possessing a firearm having suffered a prior felony under Penal Code section 12021, subdivision (a)(1), carrying a loaded firearm in a public place under section 12031, subdivision (a)(2)(A)), and carrying a concealed weapon having been convicted of narcotics related felonies under section 12025, subdivision (b)(1). The information also included a misdemeanor charge of resisting a peace officer in the lawful performance of his duties under section 148, subdivision (a)(1), as well as an allegation that appellant had suffered three prior narcotics convictions restricting his probation eligibility under section 1203, subdivision (e)(4). Following the trial court’s denial of appellant’s second motion for a continuance, a jury trial commenced at which the following evidence was adduced:
Further statutory references are to the Penal Code unless otherwise indicated.
Uniformed Officer Dawson of the Daly City Police Department was driving his marked patrol car on November 14, 2007, at about 11:00 p.m. when he noticed appellant riding a bicycle without a headlamp, a violation of the Vehicle Code. Dawson activated the red light of his patrol car, pulled next to appellant with his window down, and told him to stop. Appellant looked at Dawson but did not stop and proceeded through the intersection. Dawson called for backup, activated his emergency lights and siren, and pursued appellant. Officers Klier and Kim responded to the call in their marked patrol car.
Dawson followed appellant for about three blocks and attempted to block him on the sidewalk by pulling his car in front of him. Appellant rode around Dawson’s patrol car, but was blocked by the second patrol car driven by Officer Klier. Appellant fell off his bicycle and began running toward the rear of the Geneva Motel, pursued by all three officers. As they were closing in, appellant reached into his pants pocket and threw something into the air. Klier described the object as being about six inches, half a foot in length; Kim described it as being about eight and a-half by eleven inches; and Dawson described it as being the size of a softball. Dawson saw the object go over the ledge of the motel roof and heard a loud thud. Officer Caruso, who had by then arrived at the scene, saw appellant throw something and a second or two later heard the sound of something heavy landing.
The officers subdued appellant, handcuffed him, and placed him in the back of Dawson’s patrol car. Officer Bray arrived at the scene and climbed up onto the motel roof to look for the object thrown by appellant. He found a small black drawstring bag with a loaded .25 caliber pistol inside.
After appellant was transported to jail, he consented to Dawson’s taking a DNA buccal sample by swabbing the inside of his cheek. Biological samples were also collected from the gun found on the motel roof. The criminalist who analyzed appellant’s buccal sample and compared it to the DNA found on the gun concluded that at least three different people had touched the gun, one of whom matched appellant’s profile. Only one in 310 million individuals would match this profile. The criminalist admitted that DNA can be transferred from person to person, and that DNA from a subject who was being arrested and handcuffed could be transferred from the hands of the arresting officer onto the gun.
Appellant testified that on the night of his arrest, he had been riding his bicycle when he noticed a police officer trying to get his attention. He fled because he was on probation for three separate felony convictions for possessing controlled substances for sale. He knew that running from a police officer was a violation of his probation, but he was carrying marijuana and methamphetamine for his personal use and knew he would be searched if he was stopped. After he ran into the patrol car and fell off his bicycle, he began running on foot and threw away a plastic bag that contained two bags of narcotics. He did not know where the bags landed, but he did not throw them high enough to land on the motel roof. Appellant denied possessing a gun or throwing a black object toward the roof. He voluntarily gave a DNA sample to the police because he hoped it would exonerate him.
The prosecution dismissed the section 12025 charge during the trial. The jury returned guilty verdicts on the remaining counts and the trial court determined that appellant had suffered three prior felony convictions under section 1203, subdivision (e)(4), as alleged in the information. The court also determined that appellant had violated his probation in case number SC058310A.
At the sentencing hearing, the court denied probation and imposed the three-year upper term for the felon in possession count under section 12021, subdivision (a)(1). Sentence was stayed on the section 12031 count pursuant to section 654 and appellant was given credit for time served on the misdemeanor resisting count under section 148. The court revoked appellant’s probation in case number SC058310A and sentenced him to two years in state prison for the cocaine possession conviction, to run concurrently with the sentence imposed in case number SC065280A. Appellant filed a timely notice of appeal from the judgment imposed in each case.
II. DISCUSSION
As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that appointed counsel has filed a Wende/Anders brief raising no issues, that appellant has been advised of his right to file a supplemental brief, and that appellant did not file such a brief. We have independently reviewed the entire record for potential error and find none.
The officers were lawfully performing their duties as required for a conviction under section 148, subdivision (a). (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.) Vehicle Code section 21201, subdivision (d)(1) prohibits the operation of a bicycle without a headlamp during the hours of darkness. Officer Dawson was entitled to detain appellant to investigate a violation of this code section. (See People v. McKay (2002) 27 Cal.4th 601, 606-607 [stop and detention for riding bicycle on wrong side of street].) Once appellant fled, the officers had probable cause to arrest him for resisting a peace officer in the lawful performance of his duties under section 148, subdivision (a). (People v. Allen (1980) 109 Cal.App.3d 981, 985-987.)
The court did not abuse its discretion in denying appellant’s second motion for a continuance of the trial to enable the defense to receive a written report of the DNA analysis performed by an independent laboratory. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) As the prosecution pointed out in its opposition, it appeared the analysis had been completed and that defense counsel could obtain the result orally before trial. Moreover, appellant cannot establish prejudice when there is no showing in this record that the DNA test results were favorable to his case or contradicted the crime lab analysis on which the prosecution relied. (See People v. Gatlin (1989) 209 Cal.App.3d 31, 40.)
The trial court properly ruled that the prosecution could impeach appellant with his prior convictions of possession for sale of controlled substances. Those convictions were crimes of moral turpitude and the court did not abuse its discretion in concluding they were not unduly prejudicial under Evidence Code section 352. (See People v. Harris (2005) 37 Cal.4th 310, 337.)
The trial court reasonably exercised its discretion to impose the upper term on the felon with a firearm count, citing appellant’s lengthy criminal history and failure to comply with the terms of his probation. (See People v. Sandoval (2007) 41 Cal.4th 825, 846-847; People v. Towne (2008) 44 Cal.4th 63, 82-83.)
Substantial evidence supports the verdict on the charges, the true finding under section 1203, subdivision (e)(4), and the determination that appellant violated his probation.
Based on our review of the record, we are satisfied that appellant’s appointed attorney has fully complied with the responsibilities of appellate counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 283.)
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J., NEEDHAM, J.