IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 16, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SCOTT ANTHONY EVANS, DEFENDANT AND APPELLANT.
(San Mateo County Super. Ct. No. SCO69309)
The opinion of the court was delivered by: Richman, J.
P. v. Evans CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Counsel appointed for defendant Scott Anthony Evans has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was advised of his right to file a supplemental brief, but did not do so. We have conducted our examination, conclude there are no arguable issues, and affirm.
By information filed August 26, 2009, defendant was charged with 13 felonies: 11 counts of willfully and unlawfully acquiring or retaining possession of access card account information of another person (Pen. Code,*fn1 § 484e, subd. (d)); acquiring or retaining personal information of 10 or more people with intent to defraud (§ 530.5, subd. (e)(3)); and receiving stolen property (§ 496, subd. (a)). The information also charged three priors; seven prior felonies between January 1995 and October 2008, and two prior prison enhancements (§ 667.5, subd. (b)).
The facts*fn2 leading to the charges stemmed from a July 1, 2009 probation search of defendant's bedroom. There, Detective Schwartz of the South San Francisco Police Department found four sheets of printouts that had credit card numbers, expiration dates, security codes, and personal information presumed to be that of the owners of those credit cards. In a further search of the room, Detective Schwartz found eight additional pieces of paper with similar information. In addition to those 12 items, he found a 47-page document described as "issue identifiers": four to six digits listed on the piece of paper with an accompanying bank or financial institution, being the first four or six numbers listed on a credit card for that specific bank or financial institution. All told, 12 people were listed on the sheets. Detective Schwartz contacted 11 of the 12, all of whom confirmed the information on the lists, and that they had purchased pizza at the shop where defendant worked
Defendant was present during the search and Detective Schwartz told him it was the detective's belief that defendant "intended to use those credit cards fraudulently"; defendant replied, "Yeah, . . . I was thinking about it. . . . but I haven't done so yet."
On January 4, 2010, the trial court denied defendant's Marsden motion.*fn3 However, at the Marsden hearing, defendant's trial counsel advised the court she had just learned that she had been the deputy district attorney who had signed the written plea waiver form in the case that formed the basis of the second alleged prior prison term enhancement, a 2001 San Mateo County conviction for Health and Safety Code section 11377. Counsel could not recall anything specific about that prior case, and believed she had only been covering the courtroom on the date of the plea for the district attorney who had filed the case. Nevertheless, the court found a conflict of interest, and ordered new counsel appointed.
Following appointment of new counsel, the matter came on before the Honorable Barbara Mallach on February 8, 2010. At that time, defendant stated that he had read, understood, and signed the written plea waiver form. Judge Mallach explicitly advised defendant of his rights to a jury trial, confrontation and cross-examination of witnesses, presentation of evidence, and the right to remain silent. Defendant said he understood he was giving up those rights by virtue of his plea.
Judge Mallach then recited the agreement for the record: "probation will be denied and you will be sentenced to two years in state prison concurrent with your probation violations which are currently on the calendar; you will enter a Harvey waiver with regard to restitution which means that the dismissed counts may be considered for restitution; you will waive any irregularity in the cases--in the probation violation cases; the misdemeanor case which is line 29 will be dismissed; and you will waive a probation report?" Judge Mallach then asked if there were "[a]ny other threats or promises?" Defendant said there were none.
Judge Mallach then asked "do we need to know what any irregularity means" and defendant's counsel defined it: "the irregularity consisted of the fact that Christina Mazzei, the attorney of record in those two cases, had signed a plea form as a prosecutor at the time of the earlier cases that Mr. Evans had. So at the time she represented Mr. Evans in those two cases, there was a plea form with her signature on it in an earlier case from those two cases."
Judge Mallach found a free, knowing, and intelligent waiver of defendant's constitutional rights, and defendant entered no contest pleas to counts 12 and 13, admitted the probation ineligibility allegation, and admitted the first section 667.5, subdivision (b) prior prison term enhancement, a 1997 conviction of Health and Safety Code section 11378. Defendant waived a hearing, and admitted violation of probation in two pending probation cases.
On February 24, 2010, Judge Mallach sentenced defendant to "the stipulated sentence," that "[t]he court is going to deny probation; sentence the defendant to the midterm of two years on count 12, . . . concurrent and . . . two years on count 13, again the midterm, concurrent . . . ."
Defendant filed a notice of appeal on April 15, 2010, seeking a certificate of probable cause, which certificate was granted by the trial court on April 22, 2010.
Pursuant to our obligations under People v. Wende, supra, 25 Cal.3d 436, we have conducted a review of the entire record and have found no arguable issues requiring briefing.
Defendant was represented by competent counsel throughout the proceedings, was fully advised in writing of his constitutional rights, and waived those rights in writing. On the plea form he stated that he understood them, an understanding which he repeated to the court. Defendant's change of plea complied with Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. His attorney stipulated to a factual basis for the plea and joined in the entry of the plea.
Defendant was initially granted 210 days of actual presentence custody credit, and 119 days of conduct credit (§§ 2900.5, 4019), the court awarding one-for-one conduct credits under revised section 4019 for only that period of pretrial confinement served after January 25, 2010. After the filing of the notice of appeal, on request of appellate counsel (People v. Fares (1993) 16 Cal.App.4th 954), the court amended the abstract of judgment to grant defendant 633 days of credit (317 actual days, 316 conduct days) in accordance with the amendment to section 4019.*fn4 The amended abstract of judgment was filed in the superior court on August 13, 2010, and forwarded to us.
The retroactivity of the amendment to section 4019 had divided Courts of Appeal (see People v. Bacon (2010) 186 Cal.App.4th 333, 336, review granted Oct. 13, 2010, S184782), and the issue is currently before the Supreme Court in numerous cases, including one from this division, People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808. People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963, is treated as the lead case. In the meantime, defendant has had the benefit of a retroactive application of the amendment and further briefing would serve no purpose.
The judgment of conviction is affirmed.