People v. Bess CA5

Filed 12/28/15 P. v. Bess 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069507 Plaintiff and Respondent, (Super. Ct. No. F14903146) v.

HENRY MARKEESE BESS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. John J. Gallagher, Judge. Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Detjen, J. and Peña, J.

Henry Markeese Bess pled guilty to assault with a firearm and admitted numerous enhancements after agreeing to a plea bargain that resulted in a stipulated sentence of nine years in prison. Appellate counsel filed a brief stating he reviewed the entire appellate record and requests this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. We order the appeal dismissed because Bess failed to obtain a certificate of probable cause from the trial court. FACTUAL AND PROCEDURAL SUMMARY The original complaint was filed on April 7, 2014, and contained three causes of action. The first amended complaint was filed on April 21, 2014, and contained the same three causes of action arising out of an incident that occurred on April 4, 2014, (1) attempted murder (Pen. Code, §§ 187, subd. (a), 664);1 (2) assault with a firearm (§ 245, subd. (a)(2)); and (3) possession of a firearm by a person previously convicted of a felony (§ 29800, subd. (a)(1)). The complaint also alleged Bess personally used a firearm within the meaning of section 12022.5, subdivision (a) (counts 1 & 2), and had four prior convictions that resulted in prison sentences within the meaning of section 667.5, subdivision (b). The first amended complaint was filed on Monday, April 21, 2014. Filing of the first amended complaint (which added the firearm enhancement to count 2) apparently occurred as the result of plea negotiations that occurred on the preceding Friday, April 18, 2014. The parties had apparently reached agreement that once the first amended complaint was filed, Bess would plead no contest to count 2, and admit the charged enhancements. In exchange, the People agreed to dismiss counts 1 and 3. The parties stipulated to a nine year prison term. While arraigning Bess on the first amended complaint defense counsel recited the agreement. The prosecutor agreed, and the plea