Opinion
E074250
06-15-2020
THE PEOPLE, Plaintiff and Respondent, v. JATHON FRANK MUSELLA, Defendant and Appellant.
William D. Farber, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB19002958) OPINION APPEAL from the Superior Court of San Bernardino County. Richard V. Peel, Judge. Affirmed. William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On August 27, 2019, a felony complaint charged defendant and appellant Jathon Frank Musella with vandalism of property worth in excess of $400 under Penal Code section 594, subdivision (a) (count 1). On August 29, 2019, defendant pled not guilty.
On September 23, 2019, pursuant to a plea agreement, defendant pled no contest to count 1, in exchange for supervised probation of 36 months, credit for time served, and immediate release from jail.
Prior to pleading no contest, defendant was advised of, and he waived his constitutional rights to: (1) a preliminary hearing; (2) a trial by jury; (3) confront and cross-examine witnesses; (4) subpoena witnesses for his defense; (5) testify in his own defense; and (6) his privilege against self incrimination. Defendant signed a written plea form that set forth the plea bargain and the terms and conditions of felony probation. Defense counsel joined in the waiver of defendant's rights, concurred in the entry of defendant's plea, and stipulated to a factual basis for defendant's guilty plea based on police reports, rap sheets and the complaint.
The trial court found that "the defendant has read and understands the plea forms, understands the nature of the charges pending and the consequences of the plea, understandably and intelligently waived constitutional rights, personally and orally entered the plea and entered [into the plea] freely and voluntarily." The court also found a factual basis for defendant's plea. Thereafter, the court accepted defendant's guilty plea and found him guilty of vandalism under Penal Code section 594, subdivision (a) (count 1).
Upon defendant's waiver of time for sentencing, the trial court suspended the imposition of sentence and placed defendant on formal probation for 36 months under various terms and conditions. The court orally imposed a $300 restitution fine under Penal Code section 1202.4, subdivision (b)(1), and imposed, but suspended, a probation revocation fine under Penal Code section 1202.44. The court ordered defendant to pay a $40 court operation assessment under Penal Code section 1465.8, and a $30 criminal conviction fee under Government Code section 70373. In accordance with the plea agreement, the trial court awarded defendant 33 days of actual custody credit and 33 days of local conduct credit.
On November 22, 2019, defendant filed a timely notice of appeal challenging "the validity of the plea or admission" and requested a certificate of probable cause. On December 4, 2019, the trial court granted defendant's request for a certificate of probable cause.
B. FACTUAL HISTORY
The complaint alleged that on or about August 18, 2019, defendant committed the crime of vandalism under Penal Code section 594, subdivision (a), by unlawfully and maliciously damaging a license plate reader camera belonging to San Bernardino County. The damage was over $400.
On March 2, 2019, a motorist reported to the San Bernardino County Sheriff's Department that an arrow had been shot into one of the county's automated license plate reader cameras in Big Bear City, San Bernardino County. The camera had stopped recording on February 26, 2019. A camera repair company estimated that it would cost between $7,000 and $10,000 to repair the camera.
An investigation by the sheriff's department revealed that a black arrow with green feathers had been shot through the camera lens of the license plate reader. Surveillance video from a nearby resident showed a man carrying a bow and arrow walking in the area of the camera on February 26, 2019. The man was subsequently identified as defendant. The arrow retrieved from the lens of the license plate reader was identified as a Cabela Hunter 55/70 arrow.
On May 12, 2019, a sheriff's deputy stopped defendant while he was walking. Defendant told the deputy that he did not commonly carry his bows and arrow with him when walking. Defendant agreed to show the deputy the bows and arrows defendant owned. Defendant kept them in his bedroom in his father's residence. Defendant allowed the deputy to enter the residence and bedroom, and showed the deputy various bows and arrows that defendant owned. The deputy recognized some of the arrows in defendant's bedroom as being similar to the arrow retrieved from the damaged license plate reader camera.
On May 19, 2019, pursuant to a search warrant, sheriff's deputies searched defendant's bedroom. During the search, defendant agreed to an interview. Defendant was advised of and waived his Miranda rights. Defendant stated that he typically used his bows and arrows for fishing and to hunt small game. Defendant indicated that he could have been walking with his bow and arrow in the area of the damaged camera on the day it stopped working. Although defendant initially denied that he shot at the camera, he stated that he shot an arrow at a coyote on a hill in the direction of the pole where the camera was mounted. The deputy then told defendant that "the shot into the camera was too good of a shot for a person not to be taking aim at it, that the person who shot this arrow into the camera would have known what they were shooting at." Defendant replied that "he thought the device mounted on the camera was part of a solar system." Defendant then stated "he was willing to pay for the damages." When the deputy informed defendant that the value of the damaged camera was estimated between $7,000 and $10,000, defendant " was in shock." Thereafter, defendant surrendered the bow he used on the day the camera was damaged. The deputies also collected arrows similar to the arrow retrieved from the damaged license plate reader camera.
DISCUSSION
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. Pursuant to Anders, counsel identified the following issue to assist the court in its search of the record for error: "Did the trial court err and abuse its discretion by finding a factual basis for appellant's no contest plea to count 1 in violation of [Penal Code] section 954, subdivision (a), where the complaint alleged the crime on or about August 18, 2019, but the police reports showed that the crime occurred on or about February 26, 2019? (See Pen. Code § 1192.5 [when trial court accepts a plea of guilty or no contest, it shall inquire as to the factual basis for the plea].)"
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, and find no arguable issue for reversal on appeal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.