People v. Cianci CA1/1

Filed 12/26/13 P. v. Cianci CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A138854 v. ALLAN JOSEPH CIANCI, (San Mateo County Super. Ct. No. SC076123A) Defendant and Appellant.

In this case, defendant Allan Joseph Cianci entered no contest pleas to an information filed by the San Mateo County District Attorney. His appellate counsel has made an independent review of the proceedings below and concluded the record reflects no meritorious claims for an appeal. He has advised defendant of his conclusion and advised Cianci he may file supplemental papers raising issues he believes merit appellate review. Cianci has not filed any such pleadings. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 119, and People v. Wende (1979) 25 Cal.3d 436, counsel asks this court to conduct an independent review of the record. We have done this review and find no issues meriting further appellate consideration. STATEMENT OF THE CASE In an information filed on July 23, 2012, defendant was charged with possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a) (count 1); misdemeanor use of force or violence on a peace officer in violation of Penal Code section 243, subdivision (b) (count 2); two counts of misdemeanor resisting or obstructing a police officer in violation of Penal Code

section 148, subdivision (a)(1) (counts 3 and 4); two misdemeanor counts of possession of controlled substance paraphernalia in violation of Health and Safety Code section 11364.1 (counts 5 and 7); and possession for sale of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11378 (count 6). Regarding count 6, the information alleged four prior felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4); two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b); and one prior serious or violent felony conviction within the meaning of Penal Code section 1170.12, subdivision (c)(1). At his arraignment on July 25, 2012, defendant pled not guilty, and denied all allegations and priors. On February 13, 2013, defendant moved to dismiss count 6 on the grounds of multiple prosecutions under the Fifth Amendment of the United States Constitution and article I, section 15 of the California Constitution, Penal Code section 654, and Kellett v. Superior Court (1966) 63 Cal.2d 822. The trial court denied the motion to dismiss on March 5, 2013. Defendant withdrew his not guilty pleas on March 19, 2013. He entered no contest pleas to count 3, a violation of Penal Code section 148, subdivision (a)(1), and count 6, a violation of Health and Safety Code section 11378. As part of the bargain, defendant admitted as part of count 6 one prior serious or violent felony conviction within the meaning of Penal Code section 1170.12, subdivision (c)(1). For his pleas, a promise was made the maximum sentence of up to 32 months in state prison would be imposed. All remaining counts, allegations, and enhancements would be dismissed. Furthermore, the trial court would entertain a motion to dismiss the prior allegation under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Both orally on the record, and in his written plea form, defendant specifically waived his constitutional