Opinion
D051723
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. NICOY DEVONN SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted Nicoy Devonn Smith of possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).) Smith was also charged with possessing a controlled substance and possessing a firearm while possessing a controlled substance; the jury acquitted Smith on those charges. (Health & Saf. Code, §§ 11377, subd. (a), 11370.1, subd. (a).) The trial court sentenced Smith to four years in prison: the midterm of two years in prison plus an additional two years based on Smiths prison priors. (§§ 667.5, subd. (b), 668, 18.)
FACTS
On March 19, 2006, a San Diego police officer conducted a traffic stop of a car containing three individuals. The driver of the car was driving on a suspended license, and the front passenger had an outstanding felony warrant. Smith was sitting alone in the rear of the car. After Smith got out of the vehicle, police officers found a vial of PCP on the street where he was standing. A search of the backseat of the car revealed a loaded handgun wedged into a crack in the seatback. A DNA sample obtained from the gun matched Smiths DNA. The parties stipulated that Smith was previously convicted of a felony.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether the trial court erred in ruling that Smiths prior felony conviction for possession of cocaine for sale was admissible as impeachment (see People v. Castro (1985) 38 Cal.3d 301, 310, 317); (2) whether admission of a DNA report prepared by a technician who did not testify violated Smiths Sixth Amendment rights (see People v. Geier (2007) 41 Cal.4th 555, 607); (3) whether the trial court erred in instructing the jury with CALCRIM No. 361 (see People v. Saddler (1979) 24 Cal.3d 671, 681); and (4) whether there was substantial evidence to support the conviction.
We granted Smith permission to file a brief on his own behalf. He has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Smith on this appeal.
DISPOSITION
The judgment is affirmed.
We Concur:
McCONNELL, P. J.
HUFFMAN, J. --------------- Notes: All statutory references are to the Penal Code unless otherwise indicated.