Opinion
C096636
11-17-2023
THE PEOPLE, Plaintiff and Respondent, v. ANDREW CHARLES DALTON III, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 62-182306A
EARL, P.J.Appointed counsel for defendant Andre Charles Dalton III filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After independently examining the record, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2021, defendant was pulled over while driving near a casino. At the time, defendant was on parole and his passenger, codefendant Lacette Mendoza, was seen with a glass pipe that she later admitted contained methamphetamine. During a subsequent vehicle search, officers found an unregistered, loaded nine-millimeter firearm in a purse located in an area of the car that both defendant and Mendoza could access; they also found a single, hollow-point nine-millimeter round on the driver's side floorboard. After receiving Miranda warnings, Mendoza claimed the firearm and the methamphetamine pipe and drugs were hers, and defendant denied knowing about the loaded firearm or the hollow-point bullet.
Because defendant pleaded before trial, the following brief factual summary is based on the arresting officer's testimony during the preliminary hearing.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant was arrested and charged with being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count one) and unlawful possession of ammunition by a felon (§ 30305, subd. (a)(1); count two) while having one prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). He was held in custody pending trial.
Further undesignated statutory references are to the Penal Code.
Defendant requested to be released on his own recognizance; the court denied the request, finding defendant posed a danger to society. Defendant later requested to reduce bail, which the court also denied.
On January 11, 2022, defendant filed a petition for writ of habeas corpus challenging certain jail disciplinary actions taken against him while awaiting trial. The trial court denied the writ petition without prejudice after finding defendant failed to make a sufficient prima facie showing that he had exhausted his administrative remedies.
During a hearing on January 19, 2022, the trial court referenced a supposed Marsden motion dated January 6, 2022, that defendant may have attached to his writ petition; the appellate record, however, does not include a Marsden motion but does include a motion to reduce bail dated January 6, 2022. The court scheduled the alleged Marsden motion for further proceedings on January 27.
People v. Marsden (1970) 2 Cal.3d 118.
At the January 27 hearing, it appears the court only confirmed the date of the preliminary hearing and that defendant did not raise either a bail reduction issue or a Marsden issue or otherwise press for a ruling on the January 6 motion during the hearing.
On January 25, 2022, defendant filed a section 1538.5 motion to suppress the evidence obtained during the search of his car. The People opposed the motion, arguing the detention and subsequent search were lawful. The suppression motion and preliminary hearing were set in February 2022, but both were continued at defense counsel's request.
At the continued hearing in April 2022, defense counsel asked for a further continuance. The court denied the continuance as to the preliminary hearing but granted it as to the motion to suppress.
Following the preliminary hearing, defendant was held to answer on all charges. He entered a time waiver for arraignment on the information, and the court explained that further hearing on the continued suppression motion, if needed, could be set at that time.
On May 5, 2022, the scheduled arraignment date, apparently foregoing the motion to suppress, defendant pleaded no contest to count one and admitted the strike prior in exchange for a stipulated midterm of two years in state prison, doubled to four years for the strike, and dismissal of the remaining charges. The parties stipulated to the following factual basis for defendant's plea as recited by the prosecutor during the plea hearing: On October 30, 2021, defendant "was in unlawful possession and had control over a firearm, specifically, a Smith and Wesson [nine]-millimeter. [¶] At the time that he possessed it, the defendant stood as a convicted felon having been previously convicted of a 2018 violation of Penal Code section 215[, subdivision] (a) in Yuba County."
Defendant waived a probation report, and the trial court immediately sentenced him to the stipulated four-year term. The court imposed a $300 restitution fine (§ 1202.4), a $300 parole revocation restitution fine, suspended unless parole was revoked (§ 1202.45), a $40 court operations assessment (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373). The court awarded defendant 188 days of actual credit plus 188 days of conduct credit for 376 days of credit. Defendant timely filed a notice of appeal with a certificate of probable cause.
Shortly after pleading no contest, defendant filed a second petition for writ of habeas corpus in the trial court claiming he had been denied his right to counsel or had received ineffective assistance of counsel at the preliminary hearing. Among other things, the petition alleged that at the hearing on January 19, 2022, the trial court had granted his Marsden motion to dismiss public defender King, who subsequently represented him during the preliminary hearing despite being dismissed. But the January 19 hearing transcript shows the trial court did not decide defendant's alleged Marsden motion at the hearing, nor did he dismiss King as defendant's counsel at that time. The trial court denied the petition.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., BOULWARE EURIE, J.