People v. O'Connor CA1/1

Filed 6/12/14 P. v. O’Connor CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A139457 v. TIMON M. O’CONNOR, (San Francisco City & County Super. Ct. No. 220235) Defendant and Appellant.

Defendant Timon M. O’Connor appeals from the trial court’s denial of a preplea motion to suppress evidence. After the suppression motion was denied, defendant pled guilty to unlawful possession of a firearm, and was placed on probation. Defendant filed a timely notice of appeal, and appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), in which she raises no issue for appeal and asks this court for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (Kelly).) Counsel advised defendant of his right to file a supplemental brief and we subsequently granted his motion, filed on defendant’s behalf, for an extension of time for defendant to file a supplemental brief. Defendant filed his supplemental brief on April 16, 2014. We have examined the entire record in accordance with Wende and considered the matters raised in defendant’s supplemental brief. Having done so, we conclude that no arguable issue exists on appeal and affirm.

1

PROCEDURAL BACKGROUND On April 22, 2013, a complaint was filed charging defendant with four felonies: (1) possession of a firearm by a felon, in violation of Penal Code,1 section 29800, subdivision (a)(1); (2) unlawful possession of a concealed firearm in a vehicle, in violation of section 25400, subdivision (a)(1); (3) unlawful possession of a concealed firearm in a vehicle, in violation of section 25400, subdivision (a)(1); and (4) possession of controlled substances where prisoners are kept, in violation of section 4573.6. On April 23, 2013, the prosecution moved to amend the complaint by replacing “marijuana” with “oxycodone” in count four due to a scrivener’s error. On April 23, 2013, defendant filed a motion to suppress evidence pursuant to section 1538.5. The prosecution filed an opposition to that motion on May 1, 2013. At the start of the preliminary examination held on May 21, 2013, the magistrate granted the prosecution’s motion to amend the complaint. The motion to suppress was litigated and denied by the magistrate. The magistrate held defendant to answer for all four counts in the complaint. Subsequently on May 31, 2013, the prosecution filed an information charging defendant with the same four counts as previously charged in the complaint. On June 25, 2013, defendant filed a motion to set aside the information pursuant to section 995, alleging that the evidence introduced at the preliminary hearing in support of the charges had been seized in violation of the Fourth Amendment of the United States Constitution. At a hearing on July 10, 2013, the prosecution moved to amend the information to add a fifth count, unlawful possession of a firearm by one restricted from doing so by a condition of probation, a felony violation of section 29815, subdivision (a). Defendant waived his constitutional rights, and pled guilty to this offense, and the prosecution dismissed the other four counts. Sentencing was held on August 7, 2013. In accordance with a plea bargain, the court suspended imposition of sentence and placed defendant on probation for three