People v. Cianci CA1/1 ( 2013 )

Filed 12/26/13 P. v. Cianci CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A138854
v.
ALLAN JOSEPH CIANCI, (San Mateo County
Super. Ct. No. SC076123A)
Defendant and Appellant.
In this case, defendant Allan Joseph Cianci entered no contest pleas to an
information filed by the San Mateo County District Attorney. His appellate counsel has
made an independent review of the proceedings below and concluded the record reflects
no meritorious claims for an appeal. He has advised defendant of his conclusion and
advised Cianci he may file supplemental papers raising issues he believes merit appellate
review. Cianci has not filed any such pleadings. Pursuant to People v. Kelly (2006)
40 Cal. 4th 106, 119, and People v. Wende (1979) 25 Cal. 3d 436, counsel asks this court
to conduct an independent review of the record. We have done this review and find no
issues meriting further appellate consideration.
STATEMENT OF THE CASE
In an information filed on July 23, 2012, defendant was charged with possession
of a controlled substance in violation of Health and Safety Code section 11377,
subdivision (a) (count 1); misdemeanor use of force or violence on a peace officer in
violation of Penal Code section 243, subdivision (b) (count 2); two counts of
misdemeanor resisting or obstructing a police officer in violation of Penal Code
section 148, subdivision (a)(1) (counts 3 and 4); two misdemeanor counts of possession
of controlled substance paraphernalia in violation of Health and Safety Code
section 11364.1 (counts 5 and 7); and possession for sale of a controlled substance
(methamphetamine) in violation of Health and Safety Code section 11378 (count 6).
Regarding count 6, the information alleged four prior felony convictions within the
meaning of Penal Code section 1203, subdivision (e)(4); two prior prison terms within
the meaning of Penal Code section 667.5, subdivision (b); and one prior serious or violent
felony conviction within the meaning of Penal Code section 1170.12, subdivision (c)(1).
At his arraignment on July 25, 2012, defendant pled not guilty, and denied all allegations
and priors.
On February 13, 2013, defendant moved to dismiss count 6 on the grounds of
multiple prosecutions under the Fifth Amendment of the United States Constitution and
article I, section 15 of the California Constitution, Penal Code section 654, and Kellett v.
Superior Court (1966) 63 Cal. 2d 822. The trial court denied the motion to dismiss on
March 5, 2013.
Defendant withdrew his not guilty pleas on March 19, 2013. He entered no
contest pleas to count 3, a violation of Penal Code section 148, subdivision (a)(1), and
count 6, a violation of Health and Safety Code section 11378. As part of the bargain,
defendant admitted as part of count 6 one prior serious or violent felony conviction
within the meaning of Penal Code section 1170.12, subdivision (c)(1). For his pleas, a
promise was made the maximum sentence of up to 32 months in state prison would be
imposed. All remaining counts, allegations, and enhancements would be dismissed.
Furthermore, the trial court would entertain a motion to dismiss the prior allegation under
People v. Superior Court (Romero) (1996) 13 Cal. 4th 497 (Romero). Both orally on the
record, and in his written plea form, defendant specifically waived his constitutional
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rights under Boykin-Tahl.1 Trial counsel agreed with the waiver of rights and stipulated
there was a factual basis for the no contest pleas.
On April 30, 2013, defendant made his motion pursuant to Romero. The prior
felony was assault with a deadly weapon, a violation of Penal Code section 245,
subdivision (a)(1) in the County of San Mateo in 2006. The trial court denied the
Romero motion on May 14, 2013. The trial judge denied probation and sentenced
defendant to the mitigated term of 16 months on count 6. The sentence was doubled to
32 months pursuant to Penal Code section 1170.12, subdivision (c)(1). The court also
sentenced defendant to a concurrent sentence of 30 days for his no contest plea to
count 3. Additionally, the court imposed certain fines and other statutory conditions
based on the convictions here.
Defendant filed a timely notice of appeal on May 31, 2013. The appeal is from a
final judgment after a no contest plea and is based on the sentence. (Pen. Code, § 1237;
Cal. Rules of Court, rule 8.304(b)(4)(B).)
STATEMENT OF FACTS
A. Misdemeanor Resisting an Officer (Count 3)
On April 6, 2012 at 10:50 p.m., Daly City Police Officer William Tone stopped
defendant on Skyline Boulevard in San Mateo County for speeding and because the
license plate on defendant’s motorcycle was not illuminated. Defendant advised the
officer, when questioned regarding his nervousness, that he had two ounces of marijuana
in his backpack. After a consent search, the drugs were found. During the stop,
defendant resisted and pushed Officer Tone into his patrol vehicle, and hit him in the
mouth. Eventually, the men struggled on the ground. After additional officers arrived
Defendant was subdued and cuffed.
1
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal. 3d 122
(Tahl).
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B. Possession of Methamphetamine for Sale (Count 6)
On April 13, 2012, California Highway Patrol Officer Salaun made a traffic stop
for speeding on Highway 280 in San Bruno, California. Defendant was driving the car.
He was also cited for driving without a license, no proof of insurance, and invalid transfer
of vehicle registration.
While the initial citation process was being conducted, a passing citizen advised
the officer defendant had tossed something onto the shoulder of the road before Salaun
stopped his car. Officer Salaun checked the area initially but found no items. After
citing and releasing defendant, the officer looked further. He found a pouch where the
citizen had pointed. It contained a scale, plastic baggies, a bag of marijuana and a bag of
methamphetamine. This pouch was confirmed by the citizen as the object tossed by
defendant. The bag contained 21.21 grams of methamphetamine.
DISCUSSION
We have reviewed the record here. Defendant was properly advised of his rights
before entering the no contest pleas. The facts support each of the two pleas. The trial
court exercised its discretion in denying defendant’s Romero motion. We affirm the
judgment.
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_________________________
Dondero, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Becton, J.*
*
Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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