(San Francisco County Super. Ct. Nos. 204282 & 200730)
The opinion of the court was delivered by: Jenkins, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Deron Cheeves filed an appeal of the judgment imposed after the trial court revoked his probation on two prior offenses and sentenced him to three years in state prison. Defendant's appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, in which he raised no issue for appeal and asked this court to independently review the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Counsel attested that defendant was advised of his right to file a supplemental brief in a timely manner. Defendant has not filed a supplemental brief. Consequently, we have examined the entire record in accordance with People v. Wende, supra, and conclude that no arguable issue exists on appeal. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2006, the San Francisco District Attorney (DA) filed a felony complaint in case number 200730 charging defendant with carrying a concealed weapon in a vehicle, a Glock .40 caliber firearm, (Penal Code, section 12025, subd. (a)(3))*fn1 and carrying a loaded firearm in a vehicle (§12031(a)(1)). Defendant subsequently pleaded guilty to carrying a concealed weapon in a vehicle and the other charge was dismissed. On February 7, 2007, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years, subject to the condition that he obey all laws.
In December 2007, the DA filed a felony complaint in case number 204282 charging defendant and four co-defendants with commercial (second degree) burglary (§ 459) and grand theft (§ 487, subd. (a)). In February 2008, defendant pleaded guilty to commercial burglary and the other charge was dismissed. On March 3, 2008, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years, subject to the condition that he obey all laws. At the same hearing, the trial court also sustained the DA's previously-filed motion to revoke probation in case number 200730, and reinstated probation in that case on the same terms and conditions.
On January 8, 2009, shots were fired at the funeral of a known Eddy Rock gang member taking place at a Baptist Church on Golden Gate and Webster Streets in San Francisco. Police on patrol in the vicinity of the funeral gave chase to the suspects. Defendant and two other males were apprehended in the pursuit and taken into custody. Defendant was booked on various charges, including assault, criminal street gang activity and attempted homicide.
On January 13, 2009, the probation officer filed a motion to revoke defendant's probation in case numbers 200730 and 204282 based on the new charges filed against defendant in connection with the shooting incident at the funeral. A preliminary hearing on the new charges was held between February 11 and April 3, 2009. Prior to receiving evidence at the preliminary hearing, the trial court ruled it would hear the motion to revoke concurrently with the preliminary hearing. Additionally, the court stated that after the preliminary hearing it would schedule a further hearing to allow defense counsel a full and fair opportunity to present evidence on behalf of defendant in opposition to the motion to revoke. At the conclusion of the preliminary hearing, the trial court dismissed those counts charging defendant and his co-defendants with attempted murder and assault with a deadly weapon and held defendant to answer on charges of criminal street gang activity, discharging a firearm in a grossly negligent manner, felon in possession of a firearm, and possession of an assault weapon. The court also scheduled a hearing on the bifurcated portion of the motion to revoke probation in case numbers 200730 and 204282.
The hearing on the bifurcated portion of the motion to revoke probation was held on July 30, 2009. The DA presented testimony from Joseph Wykoff, a private security guard who was on duty on the day of the shooting at the Prince Hall Housing Projects (Prince Hall). Prince Hall is bounded by Golden Gate and McAllister to the north and south, respectively, and Webster and Fillmore to the east and west, respectively. Wykoff testified that within a minute or so of hearing shots fired he saw four black males running diagonally across the courtyard of Prince Hall in a southwesterly direction. Three of the men ran close together and one was lagging behind. One of the three men in front was carrying a gun. When they reached the back fence of a residence, the man carrying the gun passed it from his right hand to his left hand and dropped it over the fence.
Wykoff further testified that he saw the four men run into a two-storey parking lot nearby where he lost sight of them. Wykoff then saw the men emerge from the parking lot and run back in his direction. At that point, a plainclothes officer*fn2 detained one of the men at gunpoint and ordered him down on the ground. People then began to flood into the courtyard from all directions, there were police everywhere, and Wykoff was concerned there was going to be a riot. Wykoff alerted police to the whereabouts of the weapon and was then accompanied to the police station. At the police station, Wykoff wrote a statement in which he stated that he saw a plain-clothes police officer (Griffin) arrest the man who threw the gun over the fence.
Officer Griffin also testified at the bifurcated portion of the revocation hearing. After Wykoff wrote his statement Griffin spoke to him about whether he could identify the person who dropped the gun over the fence. Griffin gave Wykoff the police department's cold-show admonition before showing him three individuals, one at a time. When Wykoff saw defendant, he immediately said, "He is the one. He is the one who threw the gun." After receiving the testimony of the witnesses and entertaining argument of counsel, the trial court ...