Opinion
E051752
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. DOMINIC ISIAH HARRIS, Defendant and Appellant.
Laura Kligman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FBA1000270)
OPINION
APPEAL from the Superior Court of San Bernardino County. John B. Gibson, Judge. Affirmed.
Laura Kligman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
On August 12, 2010, a second amended information charged defendant and appellant Dominic Isiah Harris (defendant) with unlawfully carrying a dirk or dagger concealed upon his person under Penal Code section 12020, subdivision (a)(4), a felony (count 1); falsely identifying himself as another person to a police officer under section 148.9, subdivision (a), a misdemeanor (count 2); and reporting a false emergency to a state agency under section 148.3, subdivision (a), a misdemeanor (count 3). As to count 1, the information also alleged two prior prison terms under section 667.5, subdivision (b).
All statutory references are to the Penal Code unless otherwise specified.
In a previous information dated June 17, 2010, defendant was charged with possessing a deadly weapon under section 12020, subdivision (a)(1) (count 1). Counts 2 and 3 were the same.
The jury found defendant guilty of all three counts. Defendant was sentenced to the midterm of two years for count 1. He was also sentenced to one year for each of the two enhancements under section 667.5, subdivision (b), for a total commitment of four years in state prison. As to counts 2 and 3, defendant was sentenced to 90 days in county jail for each count with credit for time served on those two sentences.
On September 7, 2010, defendant filed a timely notice of appeal.
STATEMENT OF FACTS
On April 20, 2010, shortly after midnight, the California Highway Patrol (CHP) received a call regarding a pedestrian who was stranded by a call box on Interstate 15 near Barstow, California. When the officers arrived at the scene, they found defendant who stated that he could not locate his vehicle. As a safety precaution, before taking defendant into the patrol car to search for his lost vehicle, the officer pated defendant down. The officer found a black screwdriver with a short handle located in defendant's pants pocket. Defendant identified himself to the officers as "Izaiyh Harris" and stated that his date of birth was June 20, 1989. The officers had dispatch run the name and date of birth; there was no match.
The officers drove around the area to search for defendant's lost vehicle for approximately 52 minutes and then decided to give defendant a ride home. As they exited the freeway, the officer's computer came up with information regarding "Dominic Isiah Harris" with a date of birth of June 29, 1988, and that he had a warrant. Instead of taking defendant home, the officers transported defendant to the CHP station in Barstow. While still in the patrol vehicle, the officers asked defendant who was "Dominic Isiah Harris." Defendant responded that it was his brother. The officers then asked defendant to see the back of his hands to see if he had tattoos that were described in the computer as those of "Dominic Isiah Harris." They also pulled up a picture of defendant that he identified as his brother.
The officers then advised defendant that they would transport him to the sheriffs station to take his fingerprints to determine if they matched those on the warrant information. Defendant admitted that he was "Dominic Isiah Harris." He was arrested, brought to the interrogation room of the CHP station and read his Miranda rights. Defendant admitted to the officer that he had used a call box in order to get a ride home; there was no lost vehicle. Regarding the screwdriver, defendant stated that he carried it for protection because he was a parolee and not allowed to carry weapons. Defendant also stated that he purposefully gave the officers the wrong name so the officers would not discover the warrant.
Miranda v. Arizona (1966) 384 U.S. 436.
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
In his handwritten supplemental brief, defendant first contends that there was error because count 1 was amended after voir dire—from possessing a deadly weapon under section 12020, subdivision (a)(1), to unlawfully carrying a dirk or dagger concealed upon his person under section 12020, subdivision (a)(4). In this case, after jury voir dire, the People filed a second amended complaint "that conforms with the statements as they were presented at the preliminary hearing." The trial court informed defendant and his counsel that they could have a "new jury" but the defense refused: "I don't want a new jury." Thereafter, the parties waived a formal reading of the second amended complaint, and entered pleas of not guilty and denials where applicable. Defendant, in essence, argues that amending the charge was error because his "defense was forced to change" and he may have entered into a plea agreement to the new charge, but was not given the opportunity to do so, since the change was made on the first day of trial. It was not error for the trial court to permit the prosecution to amend the information on the first day of trial where section 1009 permits amendments at any stage of the proceedings to conform the accusatory pleading to proof at trial. (People v. Birks (1998) 19 Cal.4th 108, 129.)
Second, we address defendant's contention that the trial court erred in allowing a "surprise witness" to testify during trial. Defendant, however, fails to identify who this "surprise witness" was. After reviewing the record, it appears that the surprise witness defendant refers to is Elaine Rivera. In this case, after both the prosecution and defense presented their witnesses, the People moved to re-open its case to call Rivera to testify. The prosecutor explained that they believed she was not necessary. However, "based on information that came out during the defendant's examination," the prosecution subpoenaed Rivera. They located Rivera at 4:30 p.m. and interviewed her. The prosecutor provided defense counsel with a supplemental report regarding the interview immediately thereafter. The court, in allowing Rivera's testimony stated: "I don't see her as a surprise witness. Everyone knows who she was. I think it's a surprise that she's here. That being the case, not seeing any particular prejudice, no one's done any closing, I'll grant the [prosecution's] motion [to re-open]." We discern no error as the prosecutor called Rivera to the witness stand as a rebuttal witness only after she was referred to in defendant's testimony. Moreover, a review of her testimony does not reveal any prejudicial evidence against defendant.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
Acting P.J.
We concur:
King
J.
Miller
J.