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People v. Gordon

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 24, 2012
D059733 (Cal. Ct. App. Jan. 24, 2012)

Opinion

D059733 Supe r. Ct. No. SCE30681 Supe r. Ct. No. SCD231878

01-24-2012

THE PEOPLE, Plaintiff and Respondent, v. MARK GORDON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Gill and William J. McGrath, Judges. Affirmed.

A jury convicted Mark Gordon in case SCE306891 of burglary of a vehicle (Pen. Code, § 459) and petty theft after a prior (§§ 484 & 666). Gordon admitted six prison priors within the meaning of section 667.5, subdivision (b). Gordon was sentenced to a total prison term of seven years.

All further statutory references are to the Penal Code unless otherwise specified.

In case number SCD231878, Gordon entered a guilty plea to burglary with a stipulation the he would receive an eight-month term, consecutive to the term imposed in case number SCE306891. Gordon was sentenced in accordance with the plea agreement.

Gordon obtained a certificate of probable cause in case SCD231878. (§ 1237.5.) Gordon filed timely notices of appeal in both cases.

Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible but not arguable issues. We offered Gordon the opportunity to file his own brief and Gordon has responded.

In Gordon's own brief he complains about the denial of a petition for writ of habeas corpus by the superior court. Otherwise, Gordon raises the same issues as are identified by appellate counsel as possible but not arguable issues. Gordon does not offer any authority or argument on those issues in his appellate brief. We have reviewed the entire record and do not find any arguable issues for reversal of either of Gordon's cases.

STATEMENT OF FACTS


Superior Court Case No. SCE306891

On April 4, 2010, Judith Lewis returned from a trip to Las Vegas. She discovered that the back window of her car was broken, there was broken glass inside the car and that several items had been taken from the car. Ms. Lewis noted blood spatters on the center console.

A sheriff's deputy responded to Ms. Lewis's call and took a swab of the blood on the console. Later a swab of Gordon's mouth was taken for DNA analysis. Comparison of the DNA from the console to that of Gordon was found to be a match.

Superior Court Case No. SCD231878

On September 19, 2010, police received a report of a burglarized car on Harbor Drive in San Diego. The rear window was broken and items had been taken from the car. Officers collected a blood sample from the car. Later investigation established the DNA profile of the blood in the car matched that of Gordon.

DISCUSSION

As we have previously noted, appellate counsel has filed a brief indicating he is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, the brief identifies the possible, but not arguable issues:

1. Whether new testimony at trial regarding the location of the vehicle was an unconstitutional variance from the evidence presented at the preliminary hearing;

2. Whether the trial court abused its discretion in imposing the upper term for burglary;

3. Whether the court properly calculated custody credits;

4. Whether the court was required to inform Gordon, prior to his guilty plea, that he would not receive custody credits for the consecutive eight-month sentence; and

5. Whether trial counsel was ineffective for failing to file a motion to suppress the mouth swab taken from Gordon while he was in custody for a misdemeanor offense.

We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable appellate issues. Gordon has been competently represented on this appeal

DISPOSITION

The judgment is affirmed.

_______________

HUFFMAN, J.

WE CONCUR:

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McCONNELL, P. J.

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McINTYRE, J.


Summaries of

People v. Gordon

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 24, 2012
D059733 (Cal. Ct. App. Jan. 24, 2012)
Case details for

People v. Gordon

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARK GORDON, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 24, 2012

Citations

D059733 (Cal. Ct. App. Jan. 24, 2012)