People v. Say CA3 ( 2021 )

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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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.
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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.
1 Undesignated statutory references are to the Penal Code.
2
At the sentencing hearing, the trial court denied defendant’s request to strike the
prior strike, finding this request inconsistent with defendant’s plea deal and alternatively
ruling it would also deny the request on the merits. Thereafter, the trial court sentenced
defendant in accordance with his plea deal to an aggregate term of four years and
awarded him 589 days presentence custody credit (295 actual days plus 294 conduct
days). The court also imposed a $300 restitution fine (§ 1202.4), a $300 stayed parole
revocation restitution fine (§ 1202.45), a $30 conviction assessment (Gov. Code,
§ 70373), and a $40 court operations assessment (§ 1465.8). Defendant timely appealed
and did not request a certificate of probable cause.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts and procedural
history of the case and requests this court 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 his right to file a supplemental brief within 30 days from the date
the opening brief was filed. More than 30 days have elapsed, and defendant has not filed
a supplemental brief.
Having undertaken an examination of the entire record pursuant to Wende, we find
no errors 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/
KRAUSE, J.
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