Opinion
C088150
02-24-2020
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN JAMES EVANOVICH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 14F06386 & 14F06933)
Appointed counsel for defendant Stephen James Evanovich asked this court to review the record and determine whether any arguable issues exist on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Sacramento County Superior Court case No. 14F06386 (case No. 386)
In August 2014, investigative officers from the Department of Motor Vehicles (DMV) searched a warehouse in which defendant spent a great deal of his time. Defendant's girlfriend lived in the warehouse, in a bedroom accessible only through the office. Defendant and his girlfriend walked out of the office when the DMV officers arrived.
On a couch in the office, DMV officers found a loaded nine-millimeter handgun partially covered by a blanket next to a pair of men's shorts. On that same couch, officers also found a pillow, a phone, and a video game controller. Also in the office was a desk on which the officers found defendant's business cards and other papers belonging to defendant. In the bedroom, DMV officers found a .25-caliber handgun under the mattress along with a separate nine-millimeter ammunition magazine. Nine-millimeter ammunition also was found in a filing cabinet in the bedroom.
Defendant's girlfriend initially told officers the firearms did not belong to her. At trial, however, she testified the guns actually were hers. She moved them daily, particularly when defendant's children were present. She testified that she mostly kept one firearm in her purse, and the other under the mattress.
Defendant was arrested and charged with being a felon in possession of a firearm. Defendant pleaded not guilty. Before trial, defendant moved the court to appoint new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The court denied the motion. Shortly thereafter, defendant retained counsel and the court relieved court-appointed defense counsel.
At trial, the parties stipulated defendant was previously convicted of a felony. The jury found defendant guilty of being a felon in possession of a firearm.
B. Sacramento County Superior Court case No. 14F06933 (case No. 933)
Defendant owned a business selling cars but the business was not registered with the state as a car dealer. Defendant's business was selling cars after the odometers were rolled back, falsifying the cars' mileage in order to receive a higher value for the vehicles. The People charged defendant with 14 separate crimes related to this criminal conduct.
As part of a negotiated plea agreement, defendant agreed to plead no contest to one count of fraudulent possession of property in exchange for the People's agreement to dismiss counts two through eleven with a Harvey waiver, and dismiss counts twelve, thirteen and fourteen.
People v. Harvey (1979) 25 Cal.3d 754.
C. Sentencing
The trial court sentenced defendant to an aggregate term of two years in state prison for both case No. 386 (16 months) and case No. 933 (eight months). The court ordered defendant to pay direct restitution to his victims as well as various fines and fees, and awarded him 109 days of custody credit (55 actual and 54 conduct).
Defendant appeals from case Nos. 386 and 933. The trial court denied defendant's request for a certificate of probable cause in case No. 933.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief requesting that we review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days of the opening brief being filed. More than 30 days have elapsed and we received no communication from defendant.
Our independent review of the record reveals that the trial court, apparently inadvertently, failed to dismiss the balance of the pending charges in case No. 933, as contemplated in the negotiated plea agreement. We modify the judgment accordingly (Pen. Code, § 1260) to conform the judgment to the plea.
An August 31, 2018 plea minute order indicates the balance of charges were to be dismissed at judgment and sentencing and there is discussion about the balance of charges having been dismissed, but nowhere does the court actually dismiss the charges. --------
Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed as modified.
KRAUSE, J. We concur: HULL, Acting P. J. HOCH, J.