Opinion
G053737
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. RONNIE LABERT MORRISSETTE, Defendant and Appellant.
Ronnie Labert Morrissette, in pro. per.; and Jennifer Peabody, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10ZF0096) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Ronnie Labert Morrissette, in pro. per.; and Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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INTRODUCTION
We appointed counsel to represent defendant Ronnie Labert Morrissette on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth the facts of the case, raising no issues, and requesting that we independently review the entire record. We provided defendant 30 days to file written argument on his own behalf; he did so.
We have examined the entire record, appointed appellate counsel's Wende/Anders brief, and defendant's supplemental brief; we find no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
BACKGROUND
Defendant and three codefendants were charged with attempted first degree robbery (Pen. Code, §§ 664, subd. (a), 211, 212.5, subd. (a)), three counts of first degree robbery (id., §§ 211, 212.5, subd. (a)), and three counts of assault with a firearm (id., § 245, subd. (a)(2)). The indictment alleged as sentencing enhancements that defendant personally used a firearm (id., §§ 12022.53, subd. (b), 12022.5, subd. (a)), and inflicted great bodily injury in the commission of counts 3 and 4 (id., § 12022.7, subd. (a)).
An additional count of conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1)) was dismissed on the first day of trial.
Acting in propria persona, defendant filed a motion to quash his arrest warrant for lack of probable cause, and to suppress evidence, pursuant to Penal Code section 1538.5. Following a hearing, the trial court denied the motion.
On the first day of trial, defendant pled guilty to all counts and admitted the truth of all sentencing enhancement allegations in exchange for a sentence of 16 years in state prison. As the factual basis for the guilty plea, defendant stated: "In Orange County, California, on 12/8/09, I . . . did unlawfully by means of force and fear, and acting in concert with two or more persons, take the personal property against the will of and from the person, possession and immediate presence and against the will of Gregoire Kochayan, Samira Chanie and Tyler Borchard, and I attempted to commit the above-described offense from the person, possession and immediate presence of Daniel Sadek, who were all in an inhabited dwelling house. Further, I did willfully and unlawfully commit an assault with a firearm upon the person of Gregoire Kochayan, Samira Chanie and Tyler Borchard. Further, . . . I personally used a firearm during the commission and attempted commission of the above offenses. I personally inflicted great bodily injury on G. Kochayan."
Defendant faced a maximum sentence of 36 years four months. --------
The trial court denied defendant's request for a certificate of probable cause. Defendant's notice of appeal specifies that the appeal is based on the sentence or other matters occurring after the plea, and on the denial of a motion to suppress evidence.
ANALYSIS OF POTENTIAL ISSUES
We first consider whether defendant knowingly, voluntarily, and intelligently waived his right to appeal. On his plea agreement form, defendant initialed the paragraph specifying he understood that he was giving up his appellate rights by pleading guilty. At the time of the plea, defendant was asked by both the prosecutor and the court if he had read and understood everything on the plea agreement form. The court stated, "this is it. You are giving up your right to appeal this sentence. There's no coming back next week and saying 'I changed my mind'; do you understand that?" Defendant replied, "I totally agree, barring any sentencing error, or what happened, how the law pertains to that." The appellate record shows clearly that defendant's waiver of his right to appeal was knowing, voluntary, and intelligent.
The trial court did not err in denying defendant's motion to quash the arrest warrant and suppress evidence. After reviewing the papers supporting the motion and conducting a hearing, the trial court denied the motion. The trial court's finding that "there is more than sufficient information contained in the search warrant application to support probable cause to arrest the defendant" is supported by substantial evidence, particularly the statements of a participant in the robberies, Antoine Boyd, who implicated defendant.
Defendant filed a motion to dismiss the indictment, pursuant to Penal Code section 995, based on a claim that the prosecution knowingly presented perjured testimony to the grand jury. On appeal, we draw every legitimate inference to uphold the indictment. If there is "some evidence" to support the issuance of the indictment, we will not further inquire into its sufficiency. (People v. Scott (1999) 76 Cal.App.4th 411, 416.)
Defendant's motion to dismiss the indictment did not specify what testimony before the grand jury he claimed was perjured. At the hearing on the motion, defendant indicated the allegedly perjured testimony involved Boyd's testimony regarding the gun used in the crimes. As did the trial court, we conclude there was no proof that the prosecution knowingly used perjured testimony during the grand jury proceedings. Further, the allegedly perjured testimony involved whether the gun was in Boyd's car, and was not material to what happened during the robberies. The trial court did not err in denying the motion to dismiss the indictment.
In his supplemental brief, defendant argues that his sentence was illegal. We initially note that the plea agreement provided for a 16-year sentence, and defendant was sentenced to 16 years in prison. Defendant argues that the trial court improperly imposed a consecutive term for a sentencing enhancement, when it should have been ordered to run concurrently. A review of the abstract of judgment shows that count 3— first degree robbery with sentencing enhancements for personal use of a firearm and infliction of great bodily injury—was selected as the base offense, and the punishments for all other counts and sentencing enhancements were ordered to run concurrently. The sentence imposed was legal, and consistent with the plea agreement.
Finally, defendant argues in his supplemental brief that the prosecutor committed misconduct by failing to provide discovery, thus violating Brady v. Maryland (1963) 373 U.S. 83. After a hearing on defendant's request for discovery, the prosecutor provided to defendant all materials in the prosecution's possession. The court noted: "[The prosecutor] has only turned over to you what there was. He can't produce to you what he doesn't have or what might not exist." The materials, which defendant claims were not provided, are related to the issuance of the arrest warrant for defendant, and the trial court's confirmation of what documents were reviewed before issuing the warrant. Defendant has not shown that materials bearing on his guilt or innocence exist but were not provided to him. We conclude no prejudicial misconduct has been shown.
At a later hearing on the same subject, the trial court found substantial compliance with the discovery statute by the prosecution. The court then set the matter for a discovery compliance review, and, at the further hearing, found the prosecution had in fact complied with its obligations under Penal Code section 1054.1. The court's findings are supported by substantial evidence.
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the possible issues suggested by defendant, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.