People v. Mitchell CA5

Filed 3/12/14 P. v. Mitchell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F066573 Plaintiff and Respondent, (Super. Ct. Nos. F11905053 & v. F09906417)

DEDRICK DESHAUN MITCHELL, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson and Jonathan B. Conklin, Judges.† Jake Stebner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

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* Before Levy, Acting P.J., Franson, J., and Peña, J. † Judge Sanderson reviewed appellant’s suppression motion as magistrate and later sentenced appellant. Judge Conklin reviewed appellant’s suppression motion made pursuant to Penal Code section 995 as the trial court and presided over his change of plea.

INTRODUCTION On September 2, 2011, a felony complaint was filed against appellant, Dedrick Deshaun Mitchell, alleging that he had a concealed firearm in a vehicle (Pen. Code, § 12025, subd. (a)(1), count 1),1 was carrying a loaded firearm (§ 12031, subd. (a)(1), count 2), and was a former felon in possession of a firearm (§ 12021, subd. (c)(1), count 3). Appellant filed a suppression motion on December 27, 2011, contending his arrest was the product of an illegal police detention. The motion was heard during the preliminary hearing on January 13, 2012, and denied by the magistrate, who also held appellant to answer on all three allegations. On January 20, 2012, the People filed an information making the same allegations in counts 2 and 3 but alleged in count 1 that appellant carried a concealed firearm on his person (§ 12025, subd. (a)(2)). Appellant failed to appear for a hearing on March 1, 2012, and a bench warrant was issued for his arrest. Appellant was apprehended on March 16, 2012, and denied bail. On September 6, 2012, appellant moved to dismiss the information pursuant to section 995 arguing that his commitment was based on an illegal detention. On November 9, 2012, the trial court denied appellant’s motion and the prosecutor entered into a plea agreement with appellant. Appellant executed a felony advisement, waiver of rights, and plea form waiving his constitutional rights pursuant to Boykin/Tahl,2 and acknowledging the consequences of his plea. Under the agreement, appellant would admit count 1, serve a stipulated term of two years, and serve a concurrent sentence for his violation of probation in case No. F09906417. Two unrelated criminal actions and