Opinion
A153614
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DWAYNE HEATH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. Nos. FCR326293, VCR230033)
In two separate cases, defendant was charged with multiple offenses committed within eight months. Defendant pled no contest to receiving a stolen motor vehicle with a prior conviction, unlawful possession of ammunition, and evasion of a police officer in case No. VCR230033, and in case No. FCR326293, he pled no contest to possession of a firearm by a felon. After the cases were consolidated for sentencing, the trial court sentenced defendant to a total of seven years in state prison. Defendant appeals from the consolidated sentence. We affirm.
FACTS AND PROCEDURE
Because defendant pled no contest, we briefly summarize the facts taken from the probation report.
Case No. VCR230033
On July 28, 2017, defendant was spotted by Vallejo police driving a stolen vehicle. When officers attempted to initiate a traffic stop, defendant slowed down and hit a parked vehicle. He immediately fled on foot and was pursued by the officers. Eventually the officers stopped and detained defendant who was found to have five shotgun rounds and 16 shaved keys on his person. Prior to the vehicle stopping, officers observed a shotgun being thrown out of the vehicle. A loaded 20-gauge shotgun was located under a vehicle.
A complaint was filed by the Solano County District Attorney in case No. VCR230033 charging defendant with possession of a stolen vehicle with a prior conviction (Pen. Code, § 666.5; count 1), possession of a short-barreled shotgun (§ 33215; count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3), possession of ammunition (§ 30305, subd. (a)(1); count 4), evasion of a police officer (Veh. Code, § 2800.2, subd. (a); count 5), and misdemeanor possession of burglary tools (§ 466; count 6). As to counts 1 through 5, it was further alleged defendant committed the crimes while on bail (§ 12022.1), and had suffered three state prison convictions (§ 667.5, subd. (b)), and one strike conviction (§ 1170.12).
All statutory references are to the Penal Code unless otherwise indicated.
Case No. FCR326293
On December 6, 2016, Fairfield police officers were dispatched to investigate defendant and another individual pushing a Ford Mustang. Upon arrival, the officers observed the Mustang "nose to nose" with a BMV. The BMW was unlocked, its engine was running, and the keys were in the ignition. After checking on the status of the BMW, the officers discovered it was stolen from Vallejo. Inside the BMW, the officers found a bag containing a loaded Remington 20-gauge shotgun. Defendants driver's license was also located on the front seat of the vehicle.
The Solano County District Attorney filed an information charging defendant with possession of a firearm by a felon (§ 29800, subd. (a)(1); count 1), possession of ammunition (§ 30305, subd. (a)(1); count 2), possession of a short-barreled shotgun (§ 33215; count 3), auto theft with a prior conviction (§ 666.5; counts 4 and 6), and possession of a stolen vehicle (§ 496d, subd. (a); count 7). It was further alleged as to counts 1 through 4 that defendant suffered three state prison prior convictions (§ 667.5, subd. (b)) and one prior strike conviction (§ 1170.12).
Plea and Sentencing
On October 5, 2017, in case No. VCR230033, defendant pled no contest to counts 1, 4, and 5, and admitted one state prison prior conviction and the prior strike conviction with an agreed aggregate sentence of seven years. On that same date, defendant also pled no contest in case No. FCR326293 to count 1, with an agreed sentence of two years (midterm) to run concurrent to the sentence imposed in case No. VCR230033.
The court later sentenced defendant to seven years in state prison in case No. VCR230033—double the three-year midterm for violation of section 666.5 (count 1) pursuant to section 1170.12, subdivision (b), plus a consecutive one-year term pursuant to section 667.5, subdivision (b). In case No. FCR326293, the court imposed a concurrent midterm sentence of two years on count 1.
As to counts 3 and 5, the court imposed concurrent sentences to count 1. --------
At a subsequent restitution hearing, defense counsel stipulated to restitution in the amount of $3,315.20, waived the hearing, and the matter was submitted to the court.
Defendant filed a timely notice of appeal "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea." A request for a certificate of probable cause was made, but we have found no ruling on that request in the record. Counsel was appointed to represent defendant, and has filed a brief setting forth the facts of the case, but advising the court under the authority of People v. Wende (1979) 25 Cal.3d 436, no issues were found to argue on defendant's behalf. Defendant was notified by his counsel he had 30 days to file a supplemental brief with the court. No supplemental brief has been received.
DISCUSSION
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have examined the entire record ourselves to see if any arguable issue is present. Though there is no ruling in the record with respect to defendant's request for a certificate of probable cause, and defendant has not challenged his plea in his notice of appeal, we have nonetheless reviewed his plea of no contest to the several counts described above. In both cases, the record reflects defendant initialed and signed a waiver of rights and plea form after discussing each form with his counsel. In response to the court's questions, defendant indicated he was comfortable, understood the forms, and no one made any threats or promised him "anything else." The court found a factual basis for the plea following the deputy district attorney's summation of each offense. In short, defendant's plea was free, knowing, and voluntary.
Defendant was ably represented by counsel throughout the proceedings. The court correctly sentenced defendant to seven years in state prison, exactly the sentence promised in the negotiated agreement. The abstract of judgment, however, as noted by defendant's counsel, erroneously indicates defendant was sentenced to a consecutive sentence of one year pursuant to section 667, subdivision (b), rather than section 667.5, subdivision (b).
Other than this clerical error, we agree with defendant's counsel that no issues are present that could undermine defendant's no contest plea.
The trial court is directed to amend the abstract of judgment to reflect the one-year consecutive sentence was imposed under section 667.5, subdivision (b). In all other respects, the judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.