People v. Brown CA5 ( 2016 )

Filed 6/21/16 P. v. Brown CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F070343
Plaintiff and Respondent,
(Fresno Super. Ct. No. F13911334)
v.
JIMMY RAY BROWN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
Appellant/defendant Jimmy Ray Brown was convicted by a jury of violating
Vehicle Code section 2800.2, subdivision (a), felony evading a police officer. His
* Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
sentence was stayed and he was placed on three years’ probation. Appointed appellate
counsel did not identify any arguable issues in the record. We affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The Pleadings
The information as filed contained five counts, four of which were for infractions
for violating provisions of the Vehicle Code. The district attorney dismissed the
infractions before trial, and proceeded on the felony allegation of evading a police officer
in violation of Vehicle Code section 2800.2, subdivision (a).
The Testimony
Sergeant Paul Cervantes of the Fresno Police Department testified that on the
night in question, he was on patrol in an unmarked police vehicle when he observed a
vehicle with a defective brake light. He attempted to effect a traffic stop by activating his
emergency lights and siren. Defendant, who was driving the vehicle, drove away and led
officers on a chase that at times approached 90 miles per hour. Cervantes was joined in
the chase by California Highway Patrol Officer Dustin Vitucci, who was driving a
marked California Highway Patrol (CHP) vehicle. When Vitucci arrived, Cervantes
pulled out of the way and Vitucci became the lead vehicle in the pursuit. Defendant
eventually pulled to the side of the road and was arrested. Cervantes observed defendant
commit a number of Vehicle Code violations during the pursuit.
Vitucci confirmed Cervantes’s testimony.
Defendant presented testimony suggesting the brake lights on the vehicle he was
driving were operable on the night in question.
Defendant also testified in his defense. He began by stating the brake light on the
vehicle he was driving was operable that night. He also testified that he did not know a
peace officer was trying to pull him over until he was on the freeway and a CHP vehicle
was behind him. He pulled to the side of the road as soon as he was able. He denied
speeding or violating any other portions of the Vehicle Code.
2.
The Verdict and Sentencing
The jury found defendant guilty. The trial court suspended his sentence and
placed him on three years’ probation, including an additional 90 days on the adult
offender work program.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436asserting that after reviewing the record she could not identify any arguable issues in the
case. By letter dated May 8, 2015, we invited defendant to identify any issue he wished
us to consider. Defendant did not respond to our invitation.
After a thorough review of the entire record, we agree with appellate counsel.
This was an uncomplicated case providing the jury with a single decision. The evidence
was limited to the officers who participated in the pursuit, defendant’s evidence was
straightforward, the argument by both parties was limited to the evidence, the jury
instructions properly instructed the jury and were agreed to by both parties, and the
sentence was well within the trial court’s discretion. Defendant made a motion pursuant
to People v. Marsden (1970) 2 Cal.3d 118, seeking appointment of different defense
counsel. The trial court denied the motion finding that defendant failed to state grounds
to justify the change in counsel. Our review of the record finds no abuse of the trial
court’s discretion. Moreover, we note that defendant was represented at trial by different
counsel, for reasons unclear in the record. Nonetheless, defendant was adequately
represented in a difficult case to defend.
DISPOSITION
The judgment is affirmed.
3.