Filed 7/17/14 P. v. Masiel CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059724

v.                                                                       (Super.Ct.No. SWF1102764)

JAMES CRAIG MASIEL,                                                      OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Thomas Glasser, Judge.

(Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed.

         Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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       Defendant and appellant James Craig Masiel appeals after he was convicted

of drug possession and resisting arrest offenses. Defendant was sentenced to 10 years

8 months in prison. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       Deputy James King of the Riverside County Sheriff’s Department conducted a

traffic stop on a vehicle that defendant was driving. Defendant pulled into a driveway,

got out of the car, and ran away. Deputy King gave chase into the backyard of a

residence, over a fence, into another yard, and then between houses. Defendant slipped

and fell during the chase. Deputy King tried to hold defendant down with his knee and to

secure defendant’s arms, but defendant rolled away and stood up again. As Deputy King

tried to get control of defendant’s hands, defendant shoved the deputy into the wall of a

house. Deputy King recovered his balance and pushed defendant back toward the side

yard. Defendant slipped out of his jacket as he continued to struggle with Deputy King,

and ran away through the side yard toward the front of the house and the street.

       As defendant ran away, Deputy King saw him reach toward his waistband.

Deputy King drew his weapon, ordered defendant to stop and to show his hands, and

threatened to shoot. Defendant continued running across the street; Deputy King

holstered his gun and resumed the foot chase. Deputy King caught up to within 10 feet of

defendant and fired his taser. The taser caused defendant to become stiff and fall forward

onto the driveway of the residence across the street. When the taser charge ceased, after

about five seconds, defendant rolled partially under a vehicle parked in the driveway.



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Deputy King could see defendant moving his hands, manipulating something underneath

the car.

       Deputy King ordered defendant several times to show his hands. Defendant

complied momentarily, but then pulled his hands underneath the car again. Deputy King

called for backup. Defendant moved his hands from his waistband or the area of his

pants to a place up underneath the car.

       At that point, two other civilians, a man and a woman, drove up in a truck, got out,

and started calling to defendant; they also yelled at the officer to let defendant go. The

man and the woman moved in different directions. Concerned that he was being

outflanked, Deputy King placed himself so that he could see everyone, drew his gun, and

radioed for help.

       When backup officers arrived, the two civilians were detained and defendant was

finally taken into custody. Underneath the vehicle where defendant had been hiding,

officers found a cigarette pack with two small plastic baggies tucked inside the outer

wrapper. In the undercarriage beneath the engine compartment, officers also found a

sunglasses case containing syringes, baggies, and some brown cotton balls. In a dirt

planter on the driveway, about a foot from where defendant had been lying, the officers

discovered a glass pipe wrapped in a washcloth. One of the baggies inside the cigarette

package appeared to contain heroin; the other contained what looked like

methamphetamine. Each baggie weighed .3 grams, with packaging. Deputy King opined




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that the amount of each substance, heroin and methamphetamine, was a useable quantity.

Laboratory testing later confirmed the substances as heroin and methamphetamine.

       Defendant was ultimately tried on charges of possession of heroin (Health & Saf.

Code, § 11350, subd. (a), count 1), possession of methamphetamine (Health & Saf. Code,

§ 11377, subd. (a), count 2), and resisting arrest (Pen. Code, § 69, count 3). A fourth

count, for possession of ammunition by a felon, was charged, but later dismissed. The

information also alleged that defendant had suffered four prior prison terms, and two

prior strike convictions.

       At one point, defendant entered a guilty plea and admitted the prison term priors,

and one strike prior, in exchange for a sentence capped at 12 years 8 months. He later

withdrew that plea and went to trial.

       A jury found defendant guilty of all three counts. Defendant waived trial on the

priors, and admitted four prior prison terms and two strike priors. The court declined

defendant’s invitation to exercise its discretion to dismiss one of the strike priors.

(People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court sentenced

defendant to a term of four years (two years, doubled) on count 1, with a consecutive

term of one year four months (eight months, doubled) on count 2, and another

consecutive term of one year four months (eight months, doubled) on count 3. The court

imposed a one-year enhancement for each of defendant’s four prison term prior offenses,

for a total aggregate term of 10 years 8 months.

       Defendant filed a timely notice of appeal.



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                                        ANALYSIS

       This court appointed counsel to represent defendant on appeal. Counsel has now

filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v.

California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a brief

summary of the facts and a statement of the case. Counsel has asked this court to review

the record independently to determine whether there are any arguable issues on appeal.

       Defendant has been advised that he has the right to file a personal supplemental

brief, which he has not done.

       Appointed counsel has suggested some potentially arguable issues—whether

the trial court gave sufficient reasons for imposing consecutive terms (the court found

an aggravating circumstance), whether the trial court abused its discretion in declining

to dismiss one or both of defendant’s strike priors (the priors were old, but defendant

had not led a blameless life so as to put himself outside the three strikes recidivism

scheme), whether trial counsel was ineffective for failing to make certain evidentiary

objections—but our examination of the record has satisfied us that no arguable issues are

presented.




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                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                 McKINSTER
                                                             Acting P. J.
We concur:



KING
                         J.



CODRINGTON
                         J.




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