People v. Williams

• Decision Date: 09 December 1997
• Docket Number: A079223,Nos. A079143,s. A079143
• Citation: 69 Cal.Rptr.2d 690,59 Cal.App.4th 1202
• Parties: , 97 Cal. Daily Op. Serv. 9248, 97 Daily Journal D.A.R. 14,879 The PEOPLE, Plaintiff and Respondent, v. Dale Howard WILLIAMS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 690

69 Cal.Rptr.2d 690

59 Cal.App.4th 1202, 97 Cal. Daily Op. Serv. 9248,

97 Daily Journal D.A.R. 14,879

The PEOPLE, Plaintiff and Respondent, v. Dale Howard WILLIAMS, Defendant and Appellant.

Nos. A079143, A079223.

Court of Appeal, First District, Division 2, California.

Dec. 9, 1997.

Dale Howard Williams, Jeffrey S. Kross, by appointment of the Court of Appeal under the First District Appellate Project Independent Case System, Oakland, for Appellant.

Raymond Cardozo, Deputy Attorney General, for the People.

HAERLE, Acting Presiding Justice.

These are two separate appeals from convictions for similar offenses which, on our own motion, we herewith consolidate. In both cases, appellant's counsel has filed opening briefs in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (Wende).

In appeal No. A079143, Solano and Contra Costa County narcotics officers received information that appellant and another person were manufacturing methamphetamine at the latter person's residence in Vallejo. Police attempted to serve an outstanding warrant on the second person on March 7, 1996, at which time both appellant and he attempted to flee through the backyard. The police apprehended both and, in so doing, noted (a) that both were wearing latex gloves and (b) a strong chemical odor, which they recognized as one associated with the manufacture of methamphetamine. Both persons were arrested and a search warrant secured. Within the residence, the police found equipment and chemicals commonly used in the manufacture of methamphetamine as well as a small quantity of finished methamphetamine and three guns. Appellant and his confederate were arrested and booked. Appellant stated to the police that he and his confederate were assisting yet another person in the manufacture of methamphetamine in exchange for the finished product, and that he had "been using methamphetamines for thirty years."

Appellant was charged in a four-count information. The first count charged him with manufacturing methamphetamine in violation of Health & Safety Code section 11379.6, subdivision (a), after having previously been convicted under Health & Safety Code section 11378 (Pen.Code, § 1203.073, subd. (b)(8) and Health & Saf.Code, § 11370.2, subd. (b)); the second charged possession of methamphetamine for sale while personally armed with a firearm, plus a Health and Safety Code section 11370.2 allegation (Health & Saf.Code, §§ 11378 and 11370.2, subd. (c); Pen.Code, § 12022, subd. (c)); the third charged possession of a short-barreled shotgun (Pen.Code, § 12020, subd. (a)); and the fourth charged possession of three firearms by a convicted felon. (Pen.Code, § 12021, subd. (a)(1)). As to all counts, the information alleged that appellant was ineligible for probation pursuant to Penal Code section 1203, subdivision (e)(4), because of two prior felony convictions.

A preliminary hearing was held on January 15, 1997. The prosecution called three witnesses, two from the Vallejo Police Department and a Drug Enforcement Administration chemist. All three witnesses were cross-examined by defense counsel, who called no witnesses of his own but who argued to the magistrate that the evidence was insufficient to hold his client. The magistrate found there was probable cause to believe that the alleged felonies had been committed, held the appellant to answer, and certified the matter to the Superior Court.

Appellant was arraigned on January 29, 1997, pled not guilty to all charges, and denied all the allegations. Less than two months later, on March 19, 1997, he changed his plea and entered a plea of no contest under Count One to a violation of Health & Safety Code section 11379.6, subdivision (a), and also admitted the prior conviction pursuant to section 11370.2, subdivision(b), of the same code. All this was with the understanding that (a) he would receive the low term of three years in state prison on the offense as to which the no contest plea was entered and another, consecutive three years on the enhancement for the prior conviction and (b) the remaining counts would be dismissed. Appellant was advised of the constitutional rights he was waiving by pleading no contest and expressly waived those rights. Appellant was advised of the direct consequences of his plea and knowingly and voluntarily pleaded no contest. The court found a factual basis for the plea.

The court in fact sentenced appellant to six years in state prison pursuant to the negotiated disposition and granted him 93 days total presentence credit. It also ordered him to pay $2400 in restitution fines, but stayed payment of $1200 of the fines and ordered that amount waived conditioned upon appellant successfully completing his post-prison-term parole.

The underlying facts pertinent to the second appeal (No. A079223) are unknown, as appellant entered a no contest plea and admitted certain of the allegations prior to any preliminary hearing; he also waived referral to the probation department for a presentence report. In any event, in an April 8, 1997, complaint, appellant was charged with one count of manufacturing methamphetamine while personally armed with a firearm (Health & Saf.Code, § 11379.6, subd. (a); Pen.Code, § 12022, subd. (c)) (Count 1), one count of possession of pseudoephedrine with intent to manufacture methamphetamine (Health & Saf.Code, § 11383, subd. (c)(1)) while armed with a firearm (Pen.Code, § 12022, subd. (a)(1)) (Count 2), and one count of possession of a firearm (a .25 caliber pistol) by a convicted felon (Pen.Code, § 12021, subd. (a)) (Count 3). The first two counts also contained allegations of a prior conviction of Health and Safety Code section 11378 pursuant to Health and Safety Code section 11370.2, subdivision (b), and Penal Code section 1203.073, subdivision (b)(8). The complaint concluded with the allegation that the three charged offenses were committed while appellant was out on bail in the...