Opinion
H045210
05-31-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM BRADY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. B1688735)
Defendant William Brady pleaded no contest to two counts of assault with a firearm, attempted kidnapping, and stalking in exchange for the dismissal of the other charges and a 33-year prison sentence. The trial court sentenced defendant to the agreed upon term of 33 years in prison.
On appeal, defendant's counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We sent a letter to defendant notifying him of his right to submit a written argument on his own behalf on appeal, which he has done.
Based on our independent review of the record, we conclude that there are no arguable issues on appeal. As required by People v. Kelly (2006) 40 Cal.4th 106, 110, we will provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." We will further include information about aspects of the trial court proceedings that might become relevant in future proceedings. (Ibid.) I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the preliminary hearing transcript and the probation officer's report.
Pam Peck met defendant in Atlanta, where they both lived, in February 2015. They began a romantic relationship that led to the end of Peck's marriage. In November 2015, Peck and defendant moved in together. Peck left defendant on October 5, 2016 following a fight during which she said he threatened her with a knife. Peck flew to California to stay with her sister, Jill Stallings, and Stallings' husband, Kyle Dotson, in their Los Altos Hills home.
At 11:00 a.m. on October 14, 2016, defendant rang the doorbell at Peck's sister's home. Peck, Stallings, and Dotson were all at home. They did not answer the door; Stallings called 911. A couple minutes after the front doorbell rang, defendant fired a shot at the kitchen door, breaking the glass. Stallings ran outside and hid in the bushes. Defendant entered the home carrying a gun. When he encountered Peck, he grabbed her by the arm and said "let's go" or "come on." She broke free and hid in the laundry room. Dotson, who had retrieved a gun from the master bedroom, told defendant to get out of the house. Defendant and Dotson exchanged fire. Defendant fled. Santa Clara County Sheriff's Deputies found defendant sitting in his car in the driveway bleeding from gunshot wounds. They recovered a .44-caliber Charter Arms Bulldog revolver in the nearby bushes. The house was equipped with indoor security cameras, which recorded the events of October 14, 2016.
On December 29, 2016, following a preliminary hearing, the Santa Clara County District Attorney filed an information charging defendant with attempted murder (Pen. Code §§ 664, subd. (a), 187, count 1); attempted kidnapping (§§ 664, 207, subd. (a), count 2); assault with a firearm (§ 245, subd. (a)(2), count 3); two counts of first degree burglary (§§ 459, 460, subd. (a) counts 4 and 7); shooting at an inhabited house (§ 246, count 5); stalking (§ 646.9, subd. (a), count 6); and possession of a firearm by a felon (§ 29800, subd. (a)(1), count 8). As to count 1, the information alleged that defendant willfully, deliberately, and with premeditation attempted to murder Dotson. (§ 664, subd. (a).) The information further alleged that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c) in the commission of counts 1 and 2 and that he personally used a firearm within the meaning of section 12022.5, subdivision (a) in the commission of counts 3, 4, and 6. Finally, the information alleged that defendant had a prior conviction for armed robbery in Georgia that qualified as both a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code unless otherwise indicated.
On March 2, 2017, defendant pleaded no contest to two counts of assault with a firearm (amended count 1 and count 3), attempted kidnapping (count 2), and stalking (count 6) in exchange for the dismissal of the other charges and a 33-year prison sentence. Defendant also admitted that he personally used a firearm within the meaning of section 12022.5, subdivision (a) in the commission of counts 1, 3, and 6; that he personally and intentionally discharged a firearm within the meaning of section 12022.5, subdivision (b)(2) and section 12022.53, subdivision (c) in the commission of count 2; and that he suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§ 667, subds. (b)-(i)).
Count 1 was amended from attempted murder to assault with a firearm in connection with the plea.
At a later court hearing, defendant indicated a desire to withdraw his plea on ineffective assistance of counsel grounds. The court held a Marsden hearing on July 10, 2017, after which it denied defendant's request to replace appointed counsel and concluded there was no good cause for defendant to withdraw his plea.
People v. Marsden (1970) 2 Cal.3d 118. "[A] trial court is obligated to conduct a Marsden hearing on whether to discharge counsel for all purposes and appoint new counsel when a criminal defendant indicates after conviction a desire to withdraw his plea on the ground that his current counsel provided ineffective assistance . . . when there is 'at least some clear indication by defendant,' either personally or through his current counsel, that defendant 'wants a substitute attorney.' " (People v. Sanchez (2011) 53 Cal.4th 80, 89-90.) --------
The trial court imposed a 33-year prison sentence, as called for by defendant's plea agreement, at a July 26, 2017 sentencing hearing. The court imposed the upper term of four years on count 2 doubled pursuant to the Three Strikes law plus 20 years for the section 12022.53, subdivision (c) firearm enhancement; the middle term of three years on count 1 doubled pursuant to the Three Strikes law plus the middle term of four years on the section 12022.5, subdivision (a) firearm enhancement to run concurrently; the middle term of three years on count 3 doubled pursuant to the Three Strikes law plus the middle term of four years on the section 12022.5, subdivision (a) firearm enhancement to run concurrently; the middle term of two years on count 6 doubled pursuant to the Three Strikes law plus the middle term of four years on the section 12022.5, subdivision (a) firearm enhancement to run concurrently; plus five years for the prior serious felony conviction (§ 667, subd. (a)(1)) to run consecutively.
The court ordered defendant to pay $5,314.53 in restitution to Stallings. The court also imposed the following fines and fees: a $330 restitution fine (§ 1202.4, subd. (b)) with an additional $300 parole revocation fine, which was suspended pending successful completion of parole (§ 1202.45); a $160 court security fee (§ 1465.8); and a $120 criminal conviction assessment fee (Gov. Code, § 70373). The court dismissed counts 4, 5, 7, and 8.
Defendant timely appealed on September 6, 2017.
II. DISCUSSION
Having examined the entire record, we conclude that there are no arguable issues on appeal.
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.