People v. Davis CA1/5 ( 2020 )

Filed 12/30/20 P. v. Davis CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A158499
v.
JEROME MARKEL DAVIS, (San Mateo County Super.
Ct. No. NF439837A)
Defendant and Appellant.
Appellant Jerome Markel Davis (Appellant) appeals from a judgment
following his no contest plea to a charge of robbery (Pen. Code, § 212.5, subd.
(c)).1 Appellant’s counsel has raised no issue on appeal and asks this court
for an independent review of the record to determine whether there are any
arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende
(1979) 25 Cal. 3d 436.) We have reviewed the record, find no arguable issues,
and affirm.
BACKGROUND
On August 13, 2019, an amended felony information was filed charging
Appellant with robbery (§ 212.5, subd. (c)) and attempted robbery (§§ 212.5,
subd. (c), 664). Both counts alleged Appellant personally used a firearm
1 All undesignated statutory references are to the Penal Code.
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during the commission of the offenses (§ 12022.53, subd. (b)) and Appellant
was ineligible for probation (§ 1203, subd. (e)(1)). The charges were based on
an April 2015 robbery at a restaurant in South San Francisco.
Among other things, Appellant moved before trial to exclude prior
convictions, to exclude fingerprint evidence, to dismiss for delay in
prosecution, and to dismiss because evidence was not preserved. The trial
court denied those motions in whole or in part. The trial court granted the
prosecution’s motion to amend the information to change the enhancements
on the two counts from section 12022.5, subdivision (a) to section 12022.53,
subdivision (b).
On August 14, 2019, Appellant pled no contest to the robbery charge.
The parties stipulated to a two-year prison term to be served concurrently
with the sentence in Sacramento County case number 15F02816. Appellant
was sentenced accordingly.
Appellant filed a notice of appeal and sought a certificate of probable
cause based on the granting of the prosecution’s motion to amend the
information and the four pre-trial motions referenced above. The trial court
granted the request for a certificate of probable cause.
DISCUSSION
We have reviewed the entire record and have found no arguable
appellate issues. Following a period of self-representation properly approved
by the trial court, Appellant was adequately represented by legal counsel.
The trial court did not err in granting the prosecution’s August 2019
motion to amend the information or in denying Appellant’s pre-trial motions,
including those specified in the request for a certificate of probable cause.
For example, the court properly denied Appellant’s motion to dismiss for
failure to preserve evidence (video of the robbery and a 9-1-1 call log) because
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Appellant failed to show the evidence had “exculpatory value that was
apparent” before it was destroyed. (People v. Chism (2014) 58 Cal. 4th 1266,
1300; see also California v. Trombetta (1984) 467 U.S. 479.)
Appellant completed a plea form that described the constitutional
rights he was waiving by entering a no contest plea, the trial court went over
those rights with Appellant, and the court found Appellant freely and
intelligently waived those rights. Defense counsel stipulated there was a
factual basis for the plea.
The trial court’s sentence was consistent with the plea agreement. The
fines and fees imposed by the court were proper.
Appellate counsel advised Appellant of his right to file a supplemental
brief to bring to this court’s attention any issue he believes deserves review.
(See People v. Kelly (2006) 40 Cal. 4th 106.) Appellant did not file a
supplemental brief. There are no legal issues that require further briefing.
DISPOSITION
The trial court’s judgment is affirmed.
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SIMONS, Acting P.J.
We concur.
BURNS, J.
REARDON, J.*
(A158499)
*Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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