Opinion
F086084
01-03-2024
THE PEOPLE, Plaintiff and Respondent, v. LANCE MARVIN GRAHN, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F21905973 Samuel J. Dalesandro, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT[*]
STATEMENT OF APPEALABILITY
This appeal is made after an admission of a probation violation and is limited to matters occurring after entry of the admission which do not challenge the admission. It is authorized by Penal Code section 1237.
Undesignated statutory references are to the Penal Code.
STATEMENT OF THE CASE
On February 14, 2022, Grahn was charged in an information with two felonies -resisting an executive officer (§ 69; count 1) and carrying a concealed dirk or dagger (§ 21310; count 2), and two misdemeanors - possession of an injection/ingestion device (Health & Saf. Code, § 11364; count 3) and identity theft (§ 530.5, subd. (c)(1); count 4). The following prior convictions also were alleged: November 20, 2013, Fresno County case No. F13907856, § 21310; April 29, 2008, Fresno County case No. F08902518, § 273.5, subd. (a); and June 15, 2007, Santa Clara County case No. 07041145, § 487, subd. (a).
Subsequent references to dates are to dates in 2022 unless otherwise stated.
Competency
On March 17, defense counsel expressed doubts about Grahn's competency and the trial court suspended proceedings and appointed Luis Velosa, M.D., to perform an evaluation pursuant to section 1368. On May 26, Dr. Velosa filed his report which stated that Grahn is competent. The trial court reviewed the report and declared Grahn competent that same day.
Change of Plea
On August 4, after being advised of and waiving his constitutional rights, Grahn, pleaded no contest to count 1 (§ 69), and on the People's motion the trial court dismissed the remaining counts and allegations, reserving a right to comment. There was a stipulated factual basis for the plea based on People v. West (1970) 3 Cal.3d 995.
Motion to Withdraw the Plea; Sentence
On September 1, defense counsel informed the trial court that Grahn wanted to withdraw his plea based on ineffective assistance of counsel. The trial court appointed substitute counsel, "on the motion to withdraw the plea or to look into whether there's a viable motion to withdraw the plea." On October 27, the trial court considered new defense counsel's "Declaration of Ernest Scott Kinney in Support of Motion to Withdraw Plea" and then asked counsel, "And Mr. Kinney, based on your review of the history of this case and the transcripts, it's your position that there's not a basis to withdraw the plea at this point, correct?" to which counsel replied, "That's correct." The defense then withdrew its motion to withdraw plea, which was granted. The trial court then suspended imposition of sentence, placed Grahn on two years formal probation, and ordered him to serve 241 days in jail with credit for time served.
Probation Violations
On December 7, Grahn admitted violating probation (failing to stay in contact with probation), and the trial court reinstated probation. On January 31, 2023, Grahn admitted violating probation (committing two new misdemeanors), and the trial court reinstated probation. On February 2, 2023, the probation officer filed a "Violation of Probation, Hold and Hearing Notification" which noted an alleged violation date of February 1, 2023. On the same date, the probation officer filed a probation hearing report which stated: "On 02/01/23, [Grahn] reported to Probation. While he was being cleared through the metal detector, he admitted to having one foldable knife in each of his front pockets ... and [Grahn] was arrested for a violation of probation (VOP)." On February 8, 2023, after being advised of and waiving his constitutional rights, Grahn admitting violating his probation.
Sentence
On February 8, 2023, the trial court sentenced Grahn to 16 months in jail with 157 days credit (79 actual and 78 conduct) and ordered Grahn to pay a $300 fine (§ 1202.44). On September 18, 2023, the trial court amended the credits awarded to 264 days (132 actual and 132 conduct).
Notice of Appeal
On April 7, 2023, Grahn filed a timely notice of appeal, and on the same date the trial court denied his request for a certificate of probable cause.
STATEMENT OF FACTS
Initial Offenses
At about 11:32 a.m. on July 29, 2021, in Clovis, a Clovis police officer responded to a call regarding a person matching Grahn's description banging on doors at a hotel and threatening to kill someone. The officer saw Grahn, who matched the suspect's description, riding a bicycle with a trailer, and also saw Grahn fail to stop for a stop sign. The officer attempted to stop Grahn by activating his emergency lights and eventually pulling in front of Grahn, but Grahn rode around the vehicle, made a loop and stopped behind the officer's vehicle. Grahn appeared agitated and nervous.
The officer exited his vehicle and waited as Grahn remained on his bicycle. As another officer arrived, Grahn said "I'm out of here," and attempted to leave. The officer ordered Grahn to stop, but he did not, and the officer pursued him on foot. Grahn reversed and rode towards the officer, then jumped off the bicycle and appeared about to swing the bicycle at the officer, who ordered Grahn to get on the ground. Grahn refused and said he was a federal agent. Grahn eventually got on the ground and was detained. The officers searched Grahn's backpack and located a knife with an approximately 10-inch blade, a glass pipe with residue indicating methamphetamine use, and two credit/debit cards in Grahn's wallet which did not belong to him.
February 1, 2023, Probation Violation
On February 1, 2023, Grahn reported to probation. While he was being cleared through the metal detector, he admitted to having one foldable knife in each of his front pockets - one with a 3-inch blade and one with a 2.5-inch blade.
APPELLATE COURT REVIEW
Grahn's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes the declaration of appellate counsel indicating Grahn was advised he could file his own brief with this court. By letter on November 1, 2023, we invited Grahn to submit additional briefing. To date, he has not done so.
Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to Grahn.
DISPOSITION
The judgment is affirmed.
[*]Before Hill, P. J., Poochigian, J. and Snauffer, J.