Opinion
E053637 & E053639
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. KEVIN RAY MARTIN, Defendant and Appellant.
Theresa Osterman Stevenson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. FWV1100344 & FWV1100808)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael R. Libutti, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
On February 8, 2011, in case No. FWV1100344, a complaint charged defendant and appellant Kevin Ray Martin (defendant) with one count of violating Health and Safety Code section 11377, subdivision (a) (possession of a controlled substance). The complaint also alleged that defendant had suffered prison priors, within the meaning of Penal Code section 667.5, subdivision (b).
On February 16, 2011, defendant pled guilty to the possession charge, and pursuant to a plea agreement, the trial court struck the prison prior allegation of the complaint. Defendant stipulated that the police report set forth a factual basis for his plea. The trial court sentenced defendant to 36 months of supervised probation under Penal Code section 1210.1.
On March 28, 2011, in case No. FWV1100808, another criminal complaint was filed, charging defendant with violating Penal Code section 12020, subdivision (a)(1) (possession of a deadly weapon) (count 1); and violating Penal Code section 466 (possession of burglar's tools) (count 2). The complaint further alleged that defendant had suffered prison priors within the meaning of Penal Code section 667.5, subdivision (b).
On April 6, 2011, defendant pled guilty to the possession of a deadly weapon charge (count 1). Pursuant to the terms of a plea agreement, the trial court dismissed count 2. The trial court also struck the prison prior allegation of the complaint pursuant to Penal Code section 1385. Defendant stipulated that the police report set forth a factual basis for his plea. Defendant agreed to immediate sentencing.
The trial court denied probation and sentenced defendant to the upper term of three years, with his sentence of 16 months imposed in case No. FWV1100344, to run concurrent. In case No. FWV1100344, defendant waived his right to a formal evidentiary hearing under People v. Vickers (1972) 8 Cal.3d 451, and admitted that he had violated probation by violating the term that required him to "violate no law." The court then ordered defendant's probation revoked and sentenced him to the low term of one year four months for violating Health and Safety Code section 11377, subdivision (a), to run concurrent to the sentence in case No. FWV1100808.
In case No. FWV1100344, the trial court then ordered defendant to pay a restitution fine of $200 under Penal Code section 1202.4, and a parole revocation fine of $200 under Penal Code section 1202.45, stayed pending successful completion of parole. The trial court ordered credits of 20 days; comprised of 10 actual days and 10 Penal Code section 4019 credits.
Moreover, in case No. FWV1100808, the trial court ordered defendant to pay a restitution fine of $200 under Penal Code section 1202.4, and a parole revocation fine of $200 under Penal Code section 1202.45, stayed pending successful completion of parole. The trial court ordered credits of 28 days; comprised of 14 actual days and 14 Penal Code section 4019 credits.
On April 22, 2011, in case No. FWV1100808, defendant moved to withdraw his guilty plea; the motion was denied as "untimely."
On May 18, 2011, in both case Nos. FWV1100344 and FWV1100808, defendant filed timely notices of appeal and requests for a certificate of probable cause. In both his requests for a certificate of probable cause, defendant contended that his plea was made while he was of unsound mine and due to ineffective assistance of counsel in that he was "off [his] meds," and not taking his "antipsychotic/delusional" medications at the time of the plea. On June 2, 2011, the trial court denied both his requests for a certificate of probable cause. Thereafter, defendant filed second notices of appeal indicating that his appeals were based upon the sentence or other matters that occurred after his plea of admission of probation violation, and did not affect the validity of the plea. The notices, however, also noted that defendant was challenging the validity of the plea or admission of probation violation. No requests for a certificate of probable cause were filed. Therefore, no certificates of probable cause were issued on either appeal.
On August 23, 2011, appellate counsel filed a motion to consolidate the two appeals. On October 7, 2011, we filed an order consolidating the two appeals "for purposes of oral argument and decision." We designated case No. E053637 as the master file.
STATEMENT OF FACTS
San Bernardino Sheriff's Department Officer R. Trostle reported that on March 24, 2011, he was on patrol in the City of Rancho Cucamonga.
At approximately 1:10 p.m., Officer Trostle observed a white male, who was carrying a bag, approach a black male seated in the driver's seat of a vehicle that the officer had just cleared from a traffic stop. Officer Trostle approached the white male to speak with him. As he did so, he saw defendant walk toward the officer and reach with his right hand toward his back-right pocket. The officer reported seeing a wooden handle protruding from defendant's back pocket along his right side, near his waist. The officer grabbed what he classified to be an 18-inch "wooden club" from defendant's pocket.
The officer then asked defendant if he had any other weapons. Defendant stated that he did not. The officer asked defendant if he was on parole and defendant replied, "Of course." The officer conducted a pat-down search of defendant's person.
Officer Trostle reported that defendant told him that he had been out since 3:00 a.m. and was returning from recycling. Defendant told the officer that defendant found the bat and multiple other items he was carrying while recycling. The officer saw nicks on the bat that, in his opinion, indicated the bat had been used to strike hard objects. The officer told defendant that it was against the law for him to have a bat, which could be considered a weapon, since defendant was on parole. The officer reported that defendant said he knew and that he "knows the system."
Officer Trostle then asked defendant if he intended to display the bat and defendant said, "no." Defendant stated that he just picked the bat up. The officer reported that defendant was carrying a trash bag full of clothes; and a black bag containing two screwdrivers, two wrenches, a key, pliers, a wire cutter, scissors, a flashlight, a pick, a pocket knife, miscellaneous women's jewelry, and a white cloth face mask.
Defendant reported pain to his chest and pain from handcuffs; he was transported to the hospital. The doctors advised that there was no permanent damage to defendant's wrist and that all lab results and tests came back negative regarding his heart. The officer, however, did report that he observed defendant having "severe mood swings" ranging from friendly behavior to extreme anger and screaming obscenities.
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed briefs 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 in both cases, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur:
Ramirez
P.J.
Codrington
J.