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The People v. Scott Anthony Evans

December 16, 2010


(San Mateo County Super. Ct. No. SCO69309)

The opinion of the court was delivered by: Richman, J.

P. v. Evans CA1/2


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ...

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