People v. Epperson CA3 ( 2015 )

Filed 12/21/15 P. v. Epperson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C076892
Plaintiff and Respondent, (Super. Ct. Nos.
13F4652 & 13F5009)
v.
DANIEL LYNN EPPERSON,
Defendant and Appellant.
Appointed counsel for defendant Daniel Lynn Epperson has asked this court to
review the record to determine whether there exist any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would
result in a disposition more favorable to defendant, we will affirm the judgment.
I
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
1
On October 3, 2013, defendant was charged by information in case No. 13F5009
with receipt of a stolen motor vehicle (Pen. Code, § 496d, subd. (a) -- count 1)1 and
receipt of stolen property (§ 496, subd. (a) -- count 2). The information also alleged that,
as to both counts, defendant served a prior prison term. (§ 667.5, subd. (b).)
On October 4, 2013, defendant was charged by information in case No. 13F4652
with kidnapping for carjacking (§ 209.5, subd. (a) -- counts 1, 21, 30, & 38), kidnapping
for robbery (§ 209, subd. (b) -- counts 2, 22, & 39), criminal threats (§ 422 -- counts 3,
27, & 33), preventing or dissuading a witness or victim from testifying (§ 136.1, subd.
(a)(1) -- counts 4, 34, & 44), false imprisonment by violence (§ 236 -- counts 5, 26, 36, &
43), carjacking (§ 215, subd. (a) -- counts 6, 13, 23, 29, & 42), kidnapping (§ 207, subd.
(a) -- counts 7, 24, 32, & 40), second degree robbery (§ 211 - counts 8, 14, 25, 31, & 41),
carrying a loaded firearm with intent to commit a felony (§ 25800 -- count 9), unlawful
driving or taking of a vehicle (Veh. Code, § 10851, subd. (a) -- counts 10, 19, 37, & 45),
receiving a stolen motor vehicle (§ 496d, subd. (a) -- count 11), possession of an injecting
or smoking device (Health & Saf. Code, former § 11364.1 -- count 12), attempted
kidnapping for carjacking (§§ 664/209.5 -- count 15), attempted kidnapping for robbery
(§§ 664/209, subd. (b) -- count 16), attempted kidnapping (§§ 664/207, subd. (a) -- count
17), possession of a firearm by a felon (§ 29800, subd. (a) -- counts 18 & 35), receipt of
stolen property (§ 496, subd. (a) -- count 20), and battery (§ 242 -- count 28). With the
exception of counts 12 and 28, all of the charged offenses were felonies. The information
also alleged as follows:
As to counts 1 through 11, 13 through 27, 29 through 34, and 36, defendant
suffered one prior felony conviction (§ 667.5, subd. (b));
1 Undesignated statutory references are to the Penal Code.
2
As to counts 1, 2, 4 through 8, 13 through 17, 29 through 34, and 36, defendant
personally used a firearm (§ 12022.53, subd. (b)); and
As to counts 1 through 11, and 13 through 27, defendant was armed with a firearm
(§ 12022, subd. (a)(1)).
Defendant’s motion pursuant to People v. Marsden (1970) 2 Cal.3d 118, filed in
both cases, was heard and denied.
Defendant entered a negotiated plea whereby, in case No. 13F4652 he pleaded no
contest to counts 6, 13, and 23, and in case No. 13F5009 he pleaded no contest to count 1
and admitted he personally used a firearm in the commission of count 6, in exchange for
a stipulated sentence of 19 years in prison and dismissal with a Harvey waiver2 of the
balance of charges, allegations, and other cases pending against him.3 The factual basis
to substantiate the plea4 is as follows:
Case No. 13F4652
Count 6: On or about July 13, 2013, defendant took a 2008 Nissan Versa “in the
possession of Brandon Sorling . . . or the immediate possession and from the immediate
presence of a passenger of the car against the will of the person and with the intent to
either permanently or temporarily deprive the person of possession of that vehicle” by
means of force or fear. Defendant personally used a firearm during commission of the
offense.
2 People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
3 The additional cases dismissed include case Nos. 13F3663, 13F4653, 13F4807,
13F5755, 13M4619, 13CP0044, 13F7551, 13F5010, and 13F6859.
4 The court noted the factual basis for the plea was based on “the Redding Police
Department case numbers 1348968, 1350225 and the Anderson Police Department case
[number] 138008.
3
Count 13: On or about July 17, 2013, defendant took a 1995 Honda Civic “in the
possession of Scott Kholer from his person and immediate possession or from the
immediate presence of a passenger and against the will of that person with the intent to
either permanently or temporarily deprive the person of possession to the vehicle” by
means of force or fear.
Count 23: On or about July 13, 2013, defendant took a 2002 Ford Ranger “in the
possession of Jared Rapp and that was taken from that person or the immediate
possession or presence of the person or a passenger against their will and with the intent
to either permanently or temporarily deprive the person of possession of the vehicle” by
means of force or fear.
Case No. 13F5009
Count 1: On or about May 4, 2013, defendant willfully and unlawfully bought,
received, concealed, sold, or withheld, or aided in doing so, a 1994 Nissan Altima
belonging to Joshua Anderson and Jessica Corine knowing the vehicle was stolen.5
On May 2, 2014, the trial court denied probation and sentenced defendant to an
aggregate term of 19 years in state prison as follows: In case No. 13F4652, the court
sentenced defendant to the middle term of five years on count 6, plus a consecutive 10-
year term for the firearm enhancement, and two consecutive 20-month terms (one-third
the middle term) on counts 13 and 23; in case No. 13F5009, the court sentenced
defendant to a consecutive eight-month term (one-third the middle term) on count 1. The
court awarded defendant 332 days of presentence custody credit (289 actual days plus 43
conduct credits) and imposed fees and fines, including a $5,000 restitution fine
(§ 1202.4), a $5,000 parole revocation restitution fine, stayed pending successful
completion of parole (§ 1202.45), a $160 court operations fee (§ 1465.8), a $120 criminal
5The court noted the factual basis for the plea was based on “the Anderson Police
Department case number 136052.”
4
conviction assessment (Gov. Code, § 70373), a $39 crime prevention fine (comprised of
$10 pursuant to § 1202.5, $10 pursuant to § 1464, $1 pursuant to Gov. Code, § 76104.6,
$4 pursuant to Gov. Code, § 76104.7, $5 pursuant to Gov. Code, § 70372, subd. (a)(1),
$7 pursuant to Gov. Code, § 76000, subd. (a)(1), and $2 pursuant to § 1465.7). The court
subsequently determined the amount of restitution to be paid to the various victims.
Defendant filed a timely notice of appeal. The court granted his request for a
certificate of probable cause. (§ 1237.5.)
II
Counsel filed an opening brief that sets forth the facts of the case and requests that
we review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than 30
days have elapsed, and we have received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/
Blease, Acting P. J.
We concur:
/s/
Hull, J.
/s/
Renner, J.
5