Filed 12/10/14 P. v. Stites CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067803
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MF010383A)
                   v.

DONALD EDWARD STITES,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Bryan K.
Stainfield and John D. Oglesby, Judges.†
         Michael Allen,, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-
*        Before Cornell, Acting P.J., Kane, J. and Franson, J.
†      Judge Stainfield presided over appellant’s change of plea hearing. Judge Oglesby
presided over appellant’s motion to substitute counsel and sentenced appellant.
                                PROCEDURAL SUMMARY
       Appellant Donald Edward Stites was charged in an information filed April 15,
2013, with being a felon unlawfully in possession of ammunition (Pen. Code § 30305,
subd. (a)(1), count 1),1 being a felon in possession of a firearm (§ 29800, subd. (a)(1),
count 2), felony evasion of a peace officer (Veh. Code, § 2800.2, count 3), felony evasion
of a peace officer while driving in the opposite direction of traffic (Veh. Code, § 2800.4,
count 4), assault with a deadly weapon, a car (§ 245, subd. (a)(1), count 5), and
misdemeanor delay of a peace officer (§ 148, subd. (a)(1), count 6). The complaint
alleged in count 5 that appellant was armed with a firearm (§ 12022, subd. (a)(1)) and had
four prior prison term enhancements (§ 667.5, subd. (b)).
       On May 9, 2013, appellant entered into a plea agreement.2 In exchange for
admission of felony evasion of a peace officer, count 3, appellant would receive a
stipulated sentence of three years and the remaining allegations would be dismissed.
Appellant initialed and executed a felony advisement of rights, waiver and plea form in
which he acknowledged the consequences of his plea and his constitutional rights
pursuant to Boykin/Tahl.3 The trial court verified from appellant that he initialed and
executed the change of plea form and advised appellant of the consequences of his plea.
The parties stipulated to a factual basis for the plea based on the preliminary hearing
transcript. Appellant pled no contest to felony evasion of a peace officer.




1      Unless otherwise designated, all statutory references are to the Penal Code.
2      On January 24, 2013, appellant entered into a plea agreement in which he admitted
count 2 in exchange for the dismissal of the other allegations and a stipulated sentence of three
years. On March 22, 2013, however, the trial court granted appellant’s motion to withdraw his
plea.
3      Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.



                                                2.
          On June 14, 2013, appellant brought a Marsden4 motion to replace his appointed
counsel. Appellant’s counsel told the court that appellant indicated he wanted to
withdraw his plea and counsel believed a new attorney should be appointed to address
such a motion. Appellant told the court he wanted a new attorney because there was a
favorable witness who should have been subpoenaed. Appellant wanted fingerprints
taken off the weapon. Appellant stated that counsel indicated he had a conflict of
interest.5 Appellant complained that every time he saw his attorneys, they were rushed
and did not seem to have time for his case.
          Mr. Blanco explained that he learned at the preliminary hearing that appellant’s
fingerprints were not taken from the weapon. Mr. Blanco stated that a Pitchess6 motion
was contemplated, but a new plea bargain was being discussed. Mr. Evans explained that
it was his normal practice when going over a plea form to read it to the defendant,
underline key phrases and points on the form, and review the waiver of rights with the
defendant. Mr. Evans also reviews the facts of the case, possible defenses, and the
strengths and weaknesses of the prosecution’s case. Mr. Evans was particularly careful
with appellant’s new plea agreement because the prior agreement had been withdrawn.
          Mr. Evans explained that appellant was not brow-beaten into taking a plea bargain.
According to Mr. Evans, he was able to negotiate a plea bargain with the prosecutor that
did not include admission of a strike offense. The trial court found no basis to change
appellant’s counsel and denied the Marsden motion. The court sentenced appellant in
accordance with the terms of the plea agreement to a prison term of three years.
Appellant was granted actual custody credits of 155 days, conduct credits of 154 days,


4         People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
5         Appellant was represented by both Mr. Blanco and Mr. Evans from the public defender’s
office.
6         Pitchess v. Superior Court (1974) 11 Cal.3d 531.



                                                 3.
and total custody credits of 309 days. The court imposed a restitution fine of $280.
Appellant obtained a certificate of probable cause.
       Appellate counsel has filed a brief seeking independent review of the case by this
court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
                                         FACTS
       Just before 9:00 p.m. on January 7, 2013, Kern County Sheriff’s Office Deputy
Ben Harmonson was parked in his marked patrol vehicle with the lights off in the area of
Tehachapi Willow Springs Road and Backus Road when he saw a three-wheel, all-terrain
vehicle (ATV) with a single headlight being operated on the paved road in violation of
the Vehicle Code. Harmonson was in full uniform. Harmonson activated his overhead
lights, showing a solid red light to detain appellant. Appellant increased his speed and
began to pull away from Harmonson.
       Harmonson shined his spotlight on the driver to let him know he was being
pursued by a peace officer. Harmonson had to avoid oncoming traffic, first deactivating
his lights, then reactivating them. Appellant then tried to ram Harmonson’s vehicle with
the ATV. When Harmonson spotlighted the driver’s face, he saw appellant’s face
through the open face of appellant’s motorcycle helmet.
       As Harmonson pursued the ATV, appellant drove it northbound in the southbound
lanes of Tehachapi Willow Springs Road. Deputy Lancaster joined in the pursuit.
Appellant reached around his left leg and produced a .22-caliber Ruger long rifle and
discarded it to the southbound shoulder of the road. The rifle was later recovered.
       When Lancaster joined the pursuit, appellant turned west on Aqueduct Road,
which is a dirt road with portions of cement. Appellant stopped for a moment and the
two deputies stopped as well. As Harmonson started to exit his vehicle, appellant began
driving again westbound on Aqueduct Road. Harmonson pursued appellant, who then
turned south through the desert. Harmonson stopped the pursuit and retrieved the
discarded rifle.

                                            4.
       Harmonson explained that the ATV was distinctive because it had a chain and
padlock hanging from the rear of the vehicle. Harmonson recognized the ATV from a
stop he had made of appellant on December 29, 2012. On January 11, 2013, Harmonson
obtained a warrant and arrested appellant at appellant’s job on the Sierra Highway.
Harmonson questioned appellant after advising him of his Miranda rights.7 Appellant
said he was drunk and did not remember trying to ram Harmonson’s vehicle.
                           APPELLATE COURT REVIEW
       Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel indicating that appellant was advised he could file his
own brief with this court. By letter on December 27, 2013, we invited appellant to
submit additional briefing. To date, he has not done so.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                     DISPOSITION
       The judgment is affirmed.




7      Miranda v. Arizona (1966) 384 U.S. 436.



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