Opinion
C085466
10-09-2018
THE PEOPLE, Plaintiff and Respondent, v. L. AMIR ANTHONY VARICK AMMA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 6F6971)
Appointed counsel for defendant L. Amir Anthony Varick Amma asks this court to review the record to determine whether there are any arguable issues 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.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
BACKGROUND
Along with the fact that defendant had a prior felony and the gun was a semiautomatic firearm, the parties stipulated to a factual basis in the preliminary hearing. We take the facts from that hearing.
The victim saw a suspicious car parked near his house; its two occupants eyeballing him. When the victim asked what they were doing, the driver said they were waiting for someone and their phone was not working. The passenger (defendant) then stepped out of the car and doubled over in pain.
The victim offered to get his phone. When he went back to his apartment, he saw the two men had followed him to his doorstep. The driver asked if defendant could use the restroom. The victim said yes.
The victim went into the kitchen to get his phone. When he returned, the driver started asking him about marijuana. The victim had a fragrant bag of marijuana in the house.
Defendant then came out of the restroom. He drew a pistol and put it to the back of the victim's head. The victim eventually managed to wrestle the gun away. The gun went off several times in the process, hitting the driver.
The victim then told the robbers to leave. The driver and defendant left threatening, "this bitch will be burned down" if the victim called 911.
On July 7, 2017, in exchange for the dismissal of various counts and a stipulated sentence, defendant plead guilty, pursuant to People v. West, to false imprisonment with violence (Pen. Code, § 236); assault with a semiautomatic firearm (§ 245, subd. (b)); and possessing a handgun as a felon (§ 29800).
People v. West (1970) 3 Cal.3d 595; see also North Carolina v. Alford (1970) 400 U.S. 25 .
Undesignated statutory references are to the Penal Code.
The amended information included allegations of firearm enhancements under sections 12022.5, subdivision (a)(1) and 12022.53 subdivision (b), though defendant did not admit to those enhancements. --------
The trial court then imposed the stipulated seven-year four-month aggregate term: the six-year middle term for the assault count and eight months each (one-third the middle) for the two remaining counts. It also awarded 336 days of custody credit (168 actual; 168 conduct) and ordered various fines and fees.
Defendant appealed and was granted a certificate of probable cause.
DISCUSSION
Counsel filed an opening brief setting forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.
Defendant has, however, filed a supplemental brief raising several claims and requests appointment of new appellate counsel. He first points to the newly enacted Senate Bill No. 620 (SB 620) (Stats. 2017, ch. 682, §§ 1, 2), which, beginning January 1, 2018, permits a trial court to strike firearm enhancements imposed under sections 12022.5 and 12022.53. Defendant argues SB 620 is not limited to enhancements imposed under those sections but extends to all gun charges including assault with a semiautomatic weapon. He maintains that had the trial court been aware of the change in law, it may have granted him probation. We cannot agree.
SB 620 only amends sections 12022.5 and 12022.53, granting the trial court discretion to strike enhancements imposed under those sections. (See Stats. 2017, ch. 682, § 1, eff. Jan. 1, 2018.) It does not apply to any count defendant pled to.
Defendant next points to section 954, contending his plea agreement may have constituted an illegal sentence. He reasons that once he commits an assault involving a firearm, he has also committed an offense of possessing a gun as felon. And, he notes, multiple convictions for different statements of the same offense are not permitted. (See People v. Vidana (2016) 1 Cal.5th 632, 651 ["section 954 does not authorize multiple convictions for different statements of the same offense"].) We find no error.
A defendant may be convicted of (and punished for) assault with an assault weapon and possessing a firearm as a felon where the gun possession extends beyond the moment of the assault. (See People v. Garcia (2008) 167 Cal.App.4th 1550, 1566 [the defendant could be separately punished where the trial court could reasonably find it was not a situation involving the fortuitous possession of a handgun only at the moment of committing the robbery]; People v. Jones (2002) 103 Cal.App.4th 1139, 1144 ["multiple punishment is proper where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent"].) Here, nothing indicates that fortuitous circumstances put the gun in defendant's hand only at the instance of the assault. (Cf. People v. Bradford (1976) 17 Cal.3d 8, 13 [the defendant wrested away the officer's revolver and fired several shots at the officer].)
Finally, defendant's request for the appointment of new appellate counsel is denied.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: ROBIE, J. HOCH, J.