Filed 7/28/15 P. v. McGuire 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143576
v.
DENNIS VINCENT MCGUIRE,                                              (San Francisco City and County
                                                                     Super. Ct. No. SCN222710)
         Defendant and Appellant.


         Dennis Vincent McGuire appeals from a final judgment convicting him of evading
an officer with willful disregard (Veh. Code, § 2800.2, subd. (a)) following a plea of
guilty to that charge. The appeal, based on grounds that arose after the entry of the plea,
is authorized by rule 8.304(b)(4)(B) of the California Rules of Court. Appellant’s court-
appointed counsel has filed a brief raising no legal issues and asking this court to conduct
an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant
was advised by counsel of his right to file a supplemental brief but he has not done so.
                                                        FACTS1
         On May 7, 2014, officers responding to a report of an “auto boost” near the
intersection of Buchanan and Pine Streets were informed by a witness that she had seen
men flee in a black Mercedes Benz in an unknown direction. According to the witness,
the vehicle had previously been seen in the neighborhood and “it was usually associated

         1
        The facts are taken from the probation report filed with the superior court on
January 14, 2015, which was in turn based on San Francisco Police Incident Report No.
140-383-128.


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with auto boosts.” While driving down Buchanan Street looking for suspects, the officers
were flagged down by another witness who said he was the one who had called the police
and did so because he saw two suspicious persons using power drills to remove copper
piping from a dwelling on Buchanan Street. This witness showed the officers a large
strip of silicon tubing with copper wire inside that covered much of the sidewalk. The
witness stated that men were using a drill to cut into the tubing. The men left the scene
shortly before the police arrived and walked south on Buchanan Street. While the
officers were conversing with this witness, a CPMC Sutter Health service van drove up
and its occupants told the officers that two “unknown males” were ducking behind a
parked vehicle near the Peace Plaza in Japantown, which was a block away. After
driving in that direction the officers spotted the suspects and one of them gave chase on
foot. The suspect eventually returned to the vehicle, in which the other suspect was
waiting. The vehicle drove off but the two officers gave chase in their patrol car.
Eventually the suspects pulled over and were taken into custody. One of the suspects was
appellant.
                               PROCEEDINGS BELOW
       On May 9, 2014, the San Francisco County District Attorney filed a complaint
charging appellant with the commission of first degree burglary (Pen. Code, § 459)
(count I); assault with a firearm (Pen. Code, § 245, subd. (a)(2)) (count II); receiving
stolen property (Pen. Code, § 496, subd. (a)) (count III); vandalism (Pen. Code, § 594,
subd. (b)(2)) (count IV); receiving stolen property (Pen. Code, § 496, subd. (a)) (count
V); grand theft of personal property (Pen. Code, § 487, subd. (a)) (count VI); evasion of
an officer with willful disregard (Veh. Code, § 2800.2, subd. (a)) (count VII); possession
of burglary tools (Pen. Code, § 466) (count VIII); and driving with a suspended or
revoked license (Veh. Code, § 14601.1, subd. (a)) (count IX).
       On August 20, 2014, after he sought discovery pursuant to Brady v. Maryland
(1963) 373 U.S. 83, appellant pled guilty to count VII, willful evasion of an officer in
violation of Vehicle Code section 2800.2, subdivision (a), based on an agreement he
would receive the midterm sentence of two years in state prison. The court indicated it


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would dismiss pending traffic infractions that were within its authority to dismiss. The
court granted the district attorney’s motion to dismiss the remaining counts pursuant to
Penal Code section 1385.
       On September 22, 2014, appellant moved to dismiss the traffic infractions (of
which he was found guilty in a different criminal proceeding before Judge Dekreon)
under Vehicle Code section 41500, which was denied.2 Also on that date, he petitioned
for a finding of factual innocence under Penal Code section 851.8 regarding felony
counts I, II, and IV, all of which were allegedly committed on May 5, 2014. The petition
was based on the claim that “Defense counsel provided the District Attorney with video
tape evidence [he was] in another part of the city talking to a security guard at Fresh and
Easy reporting an auto burglary at the same time that the complaining witness alleges
[he] was breaking into his house with a gun.” The petition was withdrawn by appellant
on November 5, 2014.
       At the sentencing hearing on November 3, at which appellant’s plea was accepted,
the court ordered appellant to pay $200 into the restitution fund and imposed but stayed a
parole revocation fine in the same amount. Although appellant made no Harvey waiver3
in connection with any of the other charges, he did make such a waiver with respect to
the May 7, 2004 offenses, one of which was the evasion of a law enforcement officer
with willful disregard, to which he entered his plea.
       Consistent with the negotiated plea, the court on November 3, sentenced appellant
for the midterm of two years for violating Vehicle Code section 2800.2, subdivision (a).

       2
          The motion also sought dismissal under Penal Code section 1381 on the ground
that appellant had “notified the San Francisco [County] District Attorney’s Office on
January 1st 2013 of his desire to clear his traffic warrants [under section 41500]” and
“[t]he District Attorney’s Office did not take any action and the statutory time elapsed.”
On May 27, 2015, appellant filed a petition for writ of mandate in this court (No.
A145231) seeking relief from the trial court’s refusal to accept for filing a renewed
motion under section 41500 to dismiss the Vehicle Code infractions. On June 3, 2015,
the Attorney General filed a letter brief informing us that the People had no interest in
this petition.
       3
           People v. Harvey (1979) 25 Cal.3d 754.


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The court awarded credit for 182 days actually served and 182 days good time credit, for
a total of 364 days credit for time served.
       Appellant timely appealed on November 7, 2014
                                       DISCUSSION
       Where, as here, an appellant has pled guilty or no contest to an offense, the scope
of reviewable orders is restricted to matters based on constitutional, jurisdictional, or
other grounds going to the legality of the proceedings leading to the plea; guilt or
innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896; Pen.
Code, § 1237.5.)
       During the period of time his plea and sentence were negotiated and his plea
entered, appellant was represented by able counsel who assiduously protected his rights
and interests.
       The admonitions given appellant by the court prior to the time he entered his plea
fully conformed with the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In
re Tahl (1969) 1 Cal.3d 122. We are satisfied appellant understood the rights he would
be giving up by his plea before it was entered, and the record shows appellant’s plea was
fully informed and freely made.
       The factual basis for the plea was provided by the police incident report the court
relied upon and the record satisfies this court that there is such a basis.
       The sentence imposed on appellant was authorized by law.
       Our independent review having revealed no arguable issues that require further
briefing, the judgment, which includes the sentence imposed, is affirmed.




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                                _________________________
                                Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Miller, J.




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