People v. Say CA3

Filed 9/7/21 P. v. Say CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

THE PEOPLE, C093075

Plaintiff and Respondent, (Super. Ct. No. 19FE018424)

v.

SOMESAY SAY,

Defendant and Appellant.

Appointed counsel for defendant Somesay Say filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Having reviewed the record as required by Wende, we find no arguable errors that are favorable to defendant. Accordingly, we will affirm the judgment.

1

FACTUAL AND PROCEDURAL BACKGROUND The People’s felony complaint charged defendant with a count of manufacture, distribution, sale or transport of an assault weapon. (Pen. Code, § 30600, subd. (a).)1 It further alleged that due to defendant’s prior conviction for assault with a deadly weapon (§ 245, subd. (a)(1)), defendant was ineligible to serve a local prison term (§ 1170, subd. (h)(3)) as he had been previously convicted of a serious felony (§ 1192.7, subd. (c)) and had suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12). Defendant was held to answer following a preliminary hearing, the complaint was deemed the information, and the court allowed the People to amend the complaint by interlineation to change the specific date of the alleged offense. The trial court denied defendant’s requests to be released in light of the risks posed by COVID-19. Thereafter, on August 19, 2020, defendant pleaded no contest to the lesser related offense of possession of an assault weapon (§ 30605, subd. (a)) and admitted the prior strike, which had actually been assault with a firearm (§ 245, subd. (a)(2)). In exchange, defendant would receive a stipulated sentence of four years, comprised of two years for the possession count, doubled because of the prior strike. The factual basis for defendant’s plea was that “[o]n April 10th of 2019, within Sacramento County, the defendant was in possession of an assault weapon by virtue that it is a semi-automatic center-fire rifle with a detachable magazine and has a thumbhole stock, pursuant to Penal Code section 30515(a). [¶] Further, your Honor, the defendant has suffered a prior strike, in that he was convicted of a felony violation of California Penal Code section 245(a)(2), assault with a firearm, on December 19th of 2008, in Sacramento county.” Defendant waived his right to a probation report and waived time for sentencing.