People v. McDaniel CA1/2

Filed 6/5/14 P. v. McDaniel CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A140049 v. ANDRE LAVONT MCDANIEL, (Solano County Super. Ct. No. FCR298979) Defendant and Appellant.

Andre Lavont McDaniel appeals from a judgment based on his plea of no contest to assault with a deadly weapon (a guitar). His court-appointed counsel has filed a brief raising no legal issues and requesting this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. STATEMENT OF THE CASE On April 12, 2013, the Solano County District Attorney filed a consolidated information charging appellant with one felony count of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)),1 one felony count of assault with a deadly weapon (§ 245, subd. (a)(1)), one felony count of false imprisonment (§ 236), one misdemeanor count of unlawfully resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)), and one misdemeanor count of disobeying a court order. (§ 166, subd. (a)(4).) The information further alleged two one-year prior prison term enhancements (§ 667.5, subd. (b)), two

1 All subsequent statutory references are to the Penal Code.

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two-year on-bail enhancements related to the false imprisonment offense (§ 12022.1), and that appellant was ineligible for a county jail commitment (§ 1170, subd. (h)(3)). About a month after the filing of the information, defense counsel declared a doubt about appellant’s competence to stand trial (§ 1368). The court thereupon suspended the criminal proceedings and appointed Drs. Stephen L. Pittavino, Ph.D. and Janice Y. Nakagawa, Ph.D. to evaluate appellant’s competency (§ 1369). In reports filed with the court on June 12, 2013, Dr. Pittavino opined that appellant was competent to stand trial while Dr. Nakagawa opined that appellant was not competent to stand trial. Due to the conflicting reports, the court-appointed a third doctor to evaluate appellant’s competency, Robert E. Wagner, Ph.D. In a report filed on July 11, 2013, Dr. Wagner opined that appellant was competent to stand trial. After receipt by the court of Dr. Wagner’s report, the parties waived their respective rights to a jury trial on the question of competency and submitted the question of appellant’s competency on the doctors’ reports. The court found appellant competent and reinstated the criminal proceedings against him. On August 27, 2013, the parties reached a negotiated disposition. In exchange for a three-year state prison sentence and dismissal of all other offenses charged in the information, including enhancements, appellant entered a no-contest plea to the felony count of assault with a deadly weapon. Prior to entering his plea, appellant waived his Boykin-Tahl rights.2 The parties stipulated to the use of the preliminary hearing transcript as the factual basis for the no- contest plea. On the change of plea form, appellant initialed line 6, which read: “Even though I will be convicted in this case as a result of my plea, I have the right to appeal this judgment and rulings of the court. I give up my right to appeal.” (Bolding in original.) The court reserved jurisdiction to impose victim restitution at a later date (§ 1202.46).