People v. Graham CA4/2

Filed 9/21/22 P. v. Graham CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
E078532
Plaintiff and Respondent,
(Super.Ct.No. BAF1801522)
v.
OPINION
BREION BRESHARD KEY GRAHAM,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant Breion Breshard Key Graham pled guilty to attempted second degree
murder and admitted two enhancements. He appealed his judgment. His attorney has
filed a brief under the authority of People v. Wende and Anders v. California1 informing
this court they were unable to identify any errors and asking us to perform an
independent review of the record. Based on our independent review of the record, we
find no error and affirm.
I. FACTS
On December 11, 2018, Graham was at Michael P.’s residence along with Joson
L. While they were there, Michael P.’s sister and Graham’s girlfriend “Zakarriya B.” or
“Zee,” got into a fight outside. Joson was already outside at the time and attempted to
break up the fight. Graham then came outside and told Joson, “ ‘Don’t hit her.’ ” Joson
assumed Graham was referring to Zee, and told Graham, “ ‘Nobody hit her. But if you
think somebody hit her, then please, by all means, what do you want to do about it?’ ”
Graham told Joson, “ ‘Let’s go to the back.’ ” However, after a minute or so, Joson
decided not to go to the back and instead tried calling someone. As soon as he did,
Graham ran up to him and stabbed him.2
1 People v. Wende (1979) 25 Cal.3d 436; Anders v. California (1967) 386 U.S.
738.
2 These facts are taken primarily from the preliminary hearing transcript.
2
On September 30, 2019, the Riverside County District Attorney charged Graham
with attempted second degree murder. (Pen. Code, §§ 664/187, subd. (a).)3 The district
attorney also alleged two enhancements: that Graham personally inflicted great bodily
injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) and personally used a deadly and
dangerous weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). Graham pled guilty
just over a week later on October 9, 2019. Under his plea agreement, Graham would be
sentenced to an aggregate term of 13 years in state prison, composed of the upper term of
nine years for the attempted murder, three years for the great bodily injury enhancement,
and one year for the weapon enhancement. Graham waived his right to appeal in his plea
agreement. In pleading guilty in court, Graham admitted that he attempted to kill another
person with a knife and caused great bodily injury.
On January 3, 2020, the day of his sentencing, Graham made an oral motion to
withdraw his plea, and the court denied the motion after hearing from both Graham and
his attorney outside the presence of the prosecution. The court then pronounced
judgment according to the terms of the plea deal and also imposed certain fines, fees, and
assessments.
Graham’s trial counsel failed to file a timely notice of appeal. However, Graham
successfully brought a petition for writ of habeas corpus to allow him to file a notice of
appeal. (See In re Graham (Feb. 1, 2022, E076779) [nonpub. opn.] [2022 Cal.App.
Unpub. Lexis 626; 2022 WL 292267].) He filed his notice of appeal, including a request
3 Undesignated statutory references are to the Penal Code.
3
for certificate of probable cause, on February 15, 2022. The court granted his request for
certificate of probable cause the next day.
II. ANALYSIS
We appointed counsel to represent Graham on appeal, and counsel has filed a brief
under the authority of People v. Wende and Anders v. California, setting forth a statement
of the case and a summary of the facts and asking us to conduct an independent review of
the record. Counsel’s brief did not raise any potential issue for our consideration. We
offered Graham an opportunity to file a personal supplemental brief, and he has not done
so.
We have independently reviewed the record for potential error as required by
People v. Kelly (2006) 40 Cal.4th 106 and find no arguable error that would result in a
disposition more favorable to Graham.
III. DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
CODRINGTON
Acting P. J.
SLOUGH
J.
4