People v. Kuss CA3

Filed 6/30/15 P. v. Kuss CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C077095

Plaintiff and Respondent, (Super. Ct. Nos. NCR90189, NCR91233) v.

STEVEN DONALD KUSS,

Defendant and Appellant.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). On March 4, 2014, officers were dispatched to a gas station on a suspicious person call. At the station, officers contacted defendant Steven Donald Kuss who had been lurking around the parking lot and reportedly pointing his finger at cars as if he was shooting a gun. A pat-down search revealed a concealed sheath knife in a pocket and a hypodermic syringe on his person. On May 20, 2014, an officer conducted a welfare check on defendant who had been impeding traffic as he crossed the road and who was believed to be intoxicated. Based on the officer’s observations, he believed defendant to be under the influence of a

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controlled substance. A consent search revealed 0.08 grams of methamphetamine in defendant’s pocket. On July 1, 2014, defendant entered a plea of guilty to carrying a dirk or dagger (Pen. Code, § 21310)1 in case No. NCR90189 and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in case No. NCR91233 in exchange for dismissal of case No. NCR90232 and the remaining count (misdemeanor possession of an injection/ingestion device) and allegation (prior prison term) in case No. NCR90189. The plea agreement also provided for a sentence of no less than two years and no more than three years eight months.2 The trial court sentenced defendant to the upper term of three years for carrying a dirk or dagger and a consecutive one-third the midterm or eight months for possession of a controlled substance. The trial court ordered defendant to serve the full term in county jail. The court awarded 80 days of presentence custody credit. Defendant appealed in both cases on August 6, 2014. He did not obtain a certificate of probable cause. (§ 1237.5.)3