People v. Kuss CA3

Filed 6/30/15 P. v. Kuss 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C077095
Plaintiff and Respondent, (Super. Ct. Nos. NCR90189,
NCR91233)
v.
STEVEN DONALD KUSS,
Defendant and Appellant.
This is an appeal pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende).
On March 4, 2014, officers were dispatched to a gas station on a suspicious person
call. At the station, officers contacted defendant Steven Donald Kuss who had been
lurking around the parking lot and reportedly pointing his finger at cars as if he was
shooting a gun. A pat-down search revealed a concealed sheath knife in a pocket and a
hypodermic syringe on his person.
On May 20, 2014, an officer conducted a welfare check on defendant who had
been impeding traffic as he crossed the road and who was believed to be intoxicated.
Based on the officer’s observations, he believed defendant to be under the influence of a
1
controlled substance. A consent search revealed 0.08 grams of methamphetamine in
defendant’s pocket.
On July 1, 2014, defendant entered a plea of guilty to carrying a dirk or dagger
(Pen. Code, § 21310)1 in case No. NCR90189 and possession of a controlled substance
(Health & Saf. Code, § 11377, subd. (a)) in case No. NCR91233 in exchange for
dismissal of case No. NCR90232 and the remaining count (misdemeanor possession of
an injection/ingestion device) and allegation (prior prison term) in case No. NCR90189.
The plea agreement also provided for a sentence of no less than two years and no more
than three years eight months.2
The trial court sentenced defendant to the upper term of three years for carrying a
dirk or dagger and a consecutive one-third the midterm or eight months for possession of
a controlled substance. The trial court ordered defendant to serve the full term in county
jail. The court awarded 80 days of presentence custody credit.
Defendant appealed in both cases on August 6, 2014. He did not obtain a
certificate of probable cause. (§ 1237.5.)3
1 Undesignated statutory references are to the Penal Code.
2 Defendant entered a guilty plea to possession of a controlled substance but a “West”
plea to carrying a dirk/dagger. West addressed the validity of a plea to an uncharged
lesser offense entered pursuant to a plea bargain. (People v. West (1970) 3 Cal. 3d 595,
603, 611-613.) Defendant did not enter a plea to a lesser offense. Instead, defendant
admitted he possessed the knife but simply claimed that he did not know that he was not
supposed to be carrying it. Although such a plea might be referred to as a “West” plea,
defendant’s plea is closer to an “Alford” plea, based on North Carolina v. Alford (1970)
400 U.S. 25, 37-38 [27 L. Ed. 2d 162, 171-172], which upheld a guilty plea entered by a
defendant who professed belief in his innocence. Alford cautioned that a plea entered
over a claim of innocence should not be accepted without a factual basis (Id. at p. 38, fn.
10 [27 L.Ed.2d at p. 171, fn. 10]). Here, the factual basis for defendant’s plea reflects
that a pat-down search revealed a concealed sheath knife in defendant’s pocket.
3For some unknown reason, the record on appeal was augmented to reflect that on
December 2, 2014, the trial court granted defendant’s petition to recall the sentence for
2
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to 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 elapsed, and we
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.
HULL , J.
We concur:
NICHOLSON , Acting P. J.
RENNER , J.
resentencing. (§ 1170.18.) The trial court reduced defendant’s possession of a controlled
substance conviction to a misdemeanor and resentenced defendant to time served. The
trial court’s December 2014 order is not before us but we question whether the trial court
had jurisdiction to entertain defendant’s petition given that defendant’s August 2014
notice of appeal from the original judgment vested jurisdiction in this court and the
judgment is not yet final.
3