Opinion
A148541
01-18-2017
THE PEOPLE, Plaintiff and Respondent, v. EMILIO RYAN CHRISP, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR158134403)
Defendant Emilio Ryan Chrisp appeals from a judgment entered after he pleaded no contest to two counts of being a felon in possession of a firearm. (Pen. Code, § 29800, subd. (a)(1).) His counsel on appeal has filed an opening brief raising no issues and asking that this court conduct an independent review of the record as is required by People v. Wende (1979) 25 Cal.3d 436. Defendant has been apprised of his right to personally file a supplemental brief, but he has not done so.
Defendant was arrested in Willits, California on December 30, 2014, and charged with being in possession of a controlled substance (methamphetamine) while armed with a loaded pistol in violation of Health and Safety Code section 11370.1, subdivision (a) (count eight), and being a felon in possession of a firearm (a shotgun) in violation of Penal Code section 29800, subdivision (a)(1) (count nine). He posted bail (in Mendocino County Superior Court case No. MCUK-CRCR 15-80316) and was released.
All references to "counts" are to those charged in the first amended information, described below.
At the plea hearing, defendant did not dispute he had a prior felony conviction in Tulare County for violating Vehicle Code section 10851, subdivision (a), theft of a vehicle.
Less than two weeks later, on January 8, 2015, while still on bail, defendant was arrested again in Willits and charged with transporting a controlled substance (methamphetamine) in violation of Health and Safety Code section 11379, subdivision (a) (count seven) (the second arrest). He posted bail again (in Mendocino County Superior Court case No. MCUK-CRCR 15-81002) and was released.
About six weeks later, on February 19, 2015, defendant was arrested and charged with being a felon in possession of a firearm (a semiautomatic) in violation of Penal Code section 29800, subdivision (a)(1) (count five), and a prohibited person in possession of ammunition in violation of Penal Code section 30305, subdivision (a)(1) (count six). He posted bail (in Mendocino County Superior Court case No. MCUK-CRCR 15-80759) and was released.
Finally, two months later, on April 16, 2015, defendant was arrested and charged with possession of a controlled substance (methamphetamine) while armed with a loaded firearm (a handgun) in violation of Health and Safety Code section 11370.1 (count one), possession of a controlled substance (methamphetamine) for sale in violation of Health and Safety Code section 11378 (count two), being a felon in possession of a firearm in violation of Penal Code section 29800, subdivision (a)(1) (count three), and being a prohibited person in possession of ammunition in violation of Penal Code section 30305, subdivision (a)(1) (count four). (Mendocino County Superior Court case No. SCUK CRCR 15-81344.)
A codefendant, Kendra Jewell Campbell, also was arrested and charged with the conduct described in counts one and two. --------
Defendant waived his rights to a preliminary hearing in all four cases on April 29, 2015. On June 23, 2015, the trial court granted a motion to consolidate all charges. The first amended information was filed the same day. It presented the nine counts set forth above, with special allegations that defendant had committed counts one and two while armed with a firearm (Pen. Code, § 12022, subd. (c)), had committed counts one through seven while released from custody on bail (Pen. Code, § 12022.1), and had served one prior prison term (Pen. Code, § 667.5, subd. (b)).
On October 13, 2015, defendant filed a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 seeking past complaints against the sheriff's deputy and police officer who detained, searched, and arrested him on January 8, 2015 (the second arrest), and any evidence that either previously had engaged in acts of misconduct. Defense counsel advised that she intended to establish the officers illegally detained the defendant, and fabricated information to support their illegal conduct. The trial court conducted an in camera hearing, reviewed the complaints filed against the two officers, but found nothing subject to disclosure.
On February 26, 2016, pursuant to a plea agreement, defendant pleaded no contest to two counts of being a felon in possession of a firearm (counts five and nine), admitted having committed one of those offenses while released from custody on bail (count five), and admitted the prior prison term. Defendant's counsel stipulated to a factual basis for the plea.
Before he entered his plea, defendant initialed and signed an advisement of rights and waiver form in which he acknowledged that he understood his constitutional rights, which he then waived, the charges against him, and the consequences of his plea. Among other things, defendant initialed a paragraph confirming his understanding that if he pleaded guilty or no contest to the listed charges and admitted the listed allegations, the trial court would sentence him to a stipulated term of six years eight months in state prison.
Before taking defendant's no contest plea to two counts of being a felon in possession of a firearm (counts five and nine), the trial court confirmed with defendant that he had been the one to initial and sign the form, he understood the potential consequences of his plea, including the stipulated sentence of six years eight months, he was waiving his constitutional rights, had no questions, and was comfortable proceeding. The trial court judge accepted defendant's no contest pleas and admissions, found them knowingly, intelligently, and voluntarily made, and granted the prosecutor's motion to dismiss the remaining counts and special allegations against defendant.
The same judge sentenced defendant on April 7, 2016. Consistent with the plea agreement, the trial court sentenced defendant to the upper term of three years on one of the counts, one-third of the middle term of two years (eight months) on the second count, two years for the bail enhancement, and one year for the prior prison term, all to be served consecutively, for a total sentence of six years eight months. The trial court awarded 362 days of actual credit for time served, and 362 days of conduct credit, for a total of 724 days, and imposed fines and fees.
Although the original abstract of judgment indicated in part 4 that defendant had been sentenced to prison due to a current or prior serious or violent felony conviction, the trial court later declared this an error and issued an amended abstract of judgment deleting the reference. We note that the amended abstract mistakenly lists the year defendant committed the crime charged in count five as 2014.
On June 2, 2016, defendant filed a notice of appeal and requested a certificate of probable cause. In the latter, defendant contended that he should not have received the upper term of three years on the first count of being a felon in possession of a firearm because it was his first firearm offense, and that he should not have received an enhancement for serving a prior prison term because he had not ever been to prison. The trial court denied the request.
Defendant was represented by counsel. He was informed of the rights he gave up before the court accepted his plea. The sentence was authorized. There are no meritorious issues to be argued.
DISPOSITION
The trial court is ordered to prepare an amended abstract of judgment properly reflecting the year that defendant committed the offense charged in count five as 2015. In all other respects, the judgment is affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Streeter, J.