Filed 6/24/15 P. v. Sims 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E062472

v.                                                                       (Super.Ct.Nos. FVI1401998 &
                                                                         FWV1200924)
DAMON ALGERNON SIMS,
                                                                         OPINION
         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Daniel W.

Detienne, Judge. Affirmed.

         Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

                                       STATEMENT OF THE CASE

         A.       CASE NO. FWV1200924 (FIRST CASE)

         On June 13, 2012, an information charged defendant and appellant Damon



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Algernon Sims with attempted second degree robbery under Penal Code1 sections 664

and 211 (count 1); and assault with a firearm under section 245, subdivision (a)(2) (count

2). The information also alleged that as to both counts, defendant personally used a

firearm, a handgun under section 12022.53, subdivision (b), causing the offenses to be

serious and violent crimes under sections 1192.7, subdivision (c)(8), and 667.5,

subdivision (c)(8); and as to count 2, defendant personally used a firearm under section

12022.5, subdivisions (a) and (d). The information further alleged that defendant was

eligible for state prison under section 1170, subdivision (h)(3).

         On October 12, 2012, after defense counsel declared doubt regarding defendant’s

present mental competence, the trial court suspended criminal proceedings and appointed

a medical expert to evaluate defendant’s competence to stand trial. On January 4, 2013,

after receiving a medical report, the court found defendant mentally competent to stand

trial.

         On January 29, 2013, at a change of plea hearing, the trial court found that

defendant read and understood his declaration, plea form, the nature of the charges,

penalties, punishment to which he was pleading, and each of his constitutional rights.

The court then found that defendant knowingly, intelligently, freely, and voluntarily

waived his rights.

         On the prosecutor’s motion and with the approval of defense counsel, the court

amended the information by interlineations to allege counts 3 and 4: grand theft from


         1   All statutory references are to the Penal Code unless otherwise specified.

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person under section 487, subdivision (c) (count 3), and trespass with great bodily injury

under section 601, subdivision (a) (count 4).

          Thereafter, defendant pled no contest to count 2 (assault with a firearm, a strike),

count 3 (grand theft from person) and count 4 (trespass with threat of great bodily injury),

under People v. West (1970) 3 Cal.3d 595, against the advice of his counsel. Counsel

stated, “I’m not joining in his plea, your Honor, for reasons that we have discussed, your

Honor.” Thereafter, the court asked the parties to stipulate “that the preliminary hearing

transcript provides a factual basis for the plea.” The prosecutor stipulated but defense

counsel stated, “It’s a People versus West, your Honor.” The court replied, “yes,” and

stated:

          “Thank you. All right. The Court further finds then that the defendant has

personally and orally entered his plea in open court. The plea was entered freely,

voluntarily, knowingly and intelligently and there is a factual basis for the plea, which the

Court will accept and confirm.”

          According to the plea agreement, defendant agreed to a total sentence of five years

four months, suspended; 365 days of custody; minimum fines; actual restitution as to all

counts; and a dismissal of all other counts and allegations. The court stated that the

remaining counts were to be dismissed at the time of sentencing.

          On February 28, 2013, the court indicated that it had read and considered the

probation officer’s report. Defense counsel requested that the court strike term Nos. 12,

13, and 14 of the probation report as defendant had told the probation officer he had used

medical marijuana for an injury a year prior to his incarceration. The court declined to

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strike term Nos. 12 and 14,2 but struck term No. 13, which provided: “Neither use nor

possess any controlled substance without medical prescription and a physician’s written

notice is given to the probation officer.” The court also struck term No. 23, which

required enrolling in a drug treatment program.

       On the prosecution’s motion, the court ordered count 1 dismissed per section

1385, as well as the allegations, pursuant to the plea agreement. The court then chose

count 2 as the principal term and sentenced defendant to the upper term of four years,

plus a consecutive eight months (1/3 the midterm of two years) on count 3, plus a

consecutive eight months (1/3 the midterm of two years) on count 4, for a total prison

term of five years four months, with execution of the sentence suspended. The court

granted defendant supervised probation for 36 months, with numerous terms and

conditions, including that defendant violate no law. Defendant accepted probation and

the court gave him a copy of the terms and conditions.

       On June 3, 2014, the probation officer executed a petition for revocation of

probation and remand, later filed on August 21, 2014, stating that defendant had failed to

comply with a number of terms and conditions of probation, including failing to report to

probation as directed, failing to participate in programs, and violating the law. The report

stated: “The defendant has been arrested for a drug offense after the probation officer has

       2 Term No. 12 provided: “Submit to a search and seizure of your person,
residence and/or property under your control at any time of the day or night by any law-
enforcement officer, with or without a search warrant, and with our without cause
(People v. Bravo).” Term No. 14 provided: “Submit to a controlled substance test at
direction of probation officer. Each test is subject to a[n] $11.00 fee, to be collected by
Central Collections.”

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referred the defendant to services to help the defendant deal with his drug habit. Because

the disposition of the new law offense is yet to be determined, it is respectfully

recommended that the matter trail the new offense.”

       B.      CASE NO. FVI1401998 (SECOND CASE)

       On July 3, 2014, an information charged defendant with possession of a controlled

substance, methamphetamine, under Health and Safety Code section 11377, subdivision

(a) (counts 1, 2); and possession of injection/ingestion device under Health and Safety

Code section 11364, subdivision (a), a misdemeanor (count 3). The information further

alleged that defendant had suffered a strike prior, assault with a firearm under section

245, subdivision (a)(2), in the first case (§§ 1170.12, subds. (a)-(d), and 667, subds. (b)-

(i).) On July 10, 2014, defendant pled not guilty.

       On August 21, 2014, the petition for revocation of probation in the first case was

filed. The court ordered probation revoked for the purposes of retaining jurisdiction.

       At the August 22, 2014, hearing, defendant denied the allegations for revocation

of probation. The Vickers3 hearing was reserved and the case was set to trail the second

case. Probation remained revoked.

       On September 2, 2014, both cases were transferred from Victorville to Rancho

Cucamonga.




       3   People v. Vickers (1972) 8 Cal.3d 451.

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       On September 3, 2014, over defense counsel’s objection, the trial court stated that

it would hear the probation violation concurrently with the trial on the second case. The

court granted the motion to bifurcate the prior.

       On September 4, 2014, trial began. On September 9, 2014, the jury found

defendant guilty on counts 1 and 3, and not guilty as to count 2. Defendant waived a jury

trial on the prior strike, and the court found the prior strike true. The action then

proceeded for violation of probation. The court found defendant in violation of probation

solely based on term No. 2—violate no law. Probation remained revoked. The court set

sentencing for November 24, 2013. The court referred the case to the probation office for

a supplemental report.

       On November 24, 2014, in the second case, the court found that defendant

satisfied the criteria under section 1170.18 (Proposition 47, which went into effect on

November 5, 2014), and the court reduced the felony conviction for possession of

methamphetamine in count 1 to a misdemeanor. The court sentenced defendant to serve

358 days in county jail, with credit for 358 days served. This was a terminal disposition.

       On that same date, as to the first case, the court stated the probation remained

revoked. The court then denied probation and imposed the previously imposed, but

suspended, sentence of five years four months.

       In the second case, defendant filed a timely notice of appeal on December 8, 2014.

On December 10, 2014, defense counsel filed a notice of appeal in the same case as the

court had reduced the felony to a misdemeanor under section 1170.18.



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       On December 10, 2014, in the first case, defense counsel filed an appeal from the

imposition of the suspended sentence. On December 18, 2014, Appellate Defenders, Inc.

filed an amended notice of appeal after a jury trial in the second case and a contested

probation violation in the first case.

                      FACTUAL AND PROCEDURAL HISTORY

       A. CASE NO. FWV1200924 (FIRST CASE)4

       On January 31, 2012, around 8:10 a.m., Jane Doe had dropped her daughter off at

school, and returned to the parking lot of her apartment complex in Upland. While she

sat in her car for about a minute, she saw two Black males walk by. One walked up the

street and the other taller male, wearing a leather coat, walked into the front gate of the

apartment complex. During the preliminary hearing, Doe identified defendant as the

taller male.

       Something did not seem right to Doe, so she walked down the alleyway through

the side of the complex and then up the stairs to her apartment. As she began to put her

key in the door, both males ran up the stairs. Defendant, who was holding a black gun

with a rag over it, told Doe to open the door, shut up, and not to scream. Doe pleaded,

“[P]lease don’t do this. I have a daughter.” Defendant told her to shut up.

       As Doe cried and prayed, defendant continued to tell her to shut up. As she

crouched down to a fetal position, she heard the gun fall next to her; she noticed there


       4 Defendant pled no contest in this case. As the court found the preliminary
hearing contained the factual basis of the plea, the facts are taken from the preliminary
hearing.

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was no cylinder in the gun. Defendant picked up the gun and Doe struggled with him

over it. As she screamed, defendant twice hit her in the face. The other male remained

by the steps. Defendant snatched the keys from her hand and tried to grab Doe’s phone;

she did not let go. After two seconds of quiet, the two males ran down the stairs. Doe

screamed again.

       Doe called the police. When they arrived, she gave her statement. Doe told the

police one of the males was very tall and she demonstrated how tall with her hands and

arms. An officer estimated the height at 6 feet 3 inches tall. She told the officer the taller

man had braids, wore a leather coat and jeans, looked grungy, and smelled like car oil.

Doe suffered a gash on her hand that resulted in a scar and a lump on her head.

       On February 2, 2012, Upland Police Detective Dodt showed Doe a six-pack photo

lineup. She identified defendant’s picture in position No. 5. Another witness identified

defendant in position No. 5 as looking like the suspect, but said the shorter man had

braids and the taller man was dressed nicely. Another potential witness was unable to

recognize anyone. One of the witnesses provided the license plate number and described

the vehicle as a tan Jeep Cherokee type vehicle. Detective Dodt ran the license plate; it

was registered to a Jeep.

       Doe later called the detective a number of times. She stated that she thought she

had twice seen someone in the complex who looked like the taller male. It was not

defendant.




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       B.     CASE NO. FVI1401998 (SECOND CASE)

              1.     COUNT 3: POSSESSION OF INJECTION/INGESTION DEVICE

       On December 6, 2013, about 2:13 a.m., San Bernardino Sheriff’s Deputies Buell

and Rose went to a detached two-car garage of a residence in Victorville. They knocked

on the garage door and identified themselves as police officers. Deputy Buell had been to

the main residence a few months prior where five or six people were living. Defendant

opened the garage door, which was locked from the inside.

       A couch surrounded by sheets was at the center of the garage. A female was

standing outside the enclosed area. There were cabinets outside the enclosed area and

canned goods were visible. When the deputies searched the garage, they found about six

used syringes scattered on the floor around the couch and a latex glove near the couch.

The syringes were both inside and outside the enclosed area. Contained in the latex glove

were two small clear plastic baggies containing a white crystalline substance. Deputy

Buell suspected the substance was methamphetamine; a field test confirmed his

suspicion.

       While Deputy Buell was searching the garage, he conversed with defendant.

Defendant stated that he had lived there for numerous months and had paid rent to the

occupants of the main residence. He was the sole occupant of the garage. After the

deputy found the baggies, defendant said that he had recently returned after living in a

river bed nearby and that an unknown male had been residing in the garage. This person

may have left belongings behind. Neither defendant nor the female appeared to be under

the influence of drugs.

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       The suspected methamphetamine was submitted to the lab for testing. Its net

weight was 0.12 grams, and the substance was found to contain methamphetamine.

              2.     COUNT 1: POSSESSION OF METHAMPHETAMINE

       On May 29, 2014, while San Bernardino County Sheriff’s Deputies Irwin and

Abernathy were on patrol, they contacted defendant. Deputy Abernathy asked defendant

if he had anything illegal on him. Defendant responded that he did not. Deputy

Abernathy conducted a pedestrian check and searched defendant. In the small coin

pocket of defendant’s pants, the deputy found a white piece of melted plastic sealed

around a white crystalline substance, which he suspected to be methamphetamine. In

another pocket, he found several new syringes in a bag. The deputy conducted a field test

on the substance which tested positive for amphetamines. Deputy Abernathy

photographed the pieces of plastic. He then arrested defendant and booked him into

custody for simple possession of a controlled substance.

       Lab tests later confirmed the net weight of the substance was 0.18 grams; it

contained methamphetamine.

                                      DISCUSSION

       After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of

the case, a summary of the facts, and potential arguable issues, and requesting this court

to undertake a review of the entire record.



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       We offered defendant an opportunity to file a personal supplemental brief, but he

has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we

have independently reviewed the record for potential error and find no error.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              MILLER
                                                                                           J.

We concur:


McKINSTER
                Acting P. J.


KING
                          J.




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