Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS091626
Mihara, J.
Defendant Harvey Darnell Blackburn was charged with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1) - count 1), possession of ammunition by a prohibited person (§ 12316, subd. (b)(1) - count 2), and resisting a police officer (§ 148, subd. (a)(1) - count 3). It was also alleged that defendant had previously been convicted of a strike conviction (§ 1170.12, subd. (c)(1)) and had served five prior prison terms (§ 667.5, subd. (b)). The trial court denied defendant’s motion for a continuance of jury trial to allow counsel time to file a petition for writ of habeas corpus in order to dispute defendant’s parole status which triggered the police search and seizure in this case. Defendant’s motion to disqualify the judge pursuant to Code of Civil Procedure section 170.6 was denied as untimely. Defendant’s Marsden motion was also denied. Pursuant to a negotiated agreement, defendant pleaded no contest to count 1 and admitted the strike conviction and four prior prison term allegations. The trial court dismissed counts 2 and 3, struck the prior prison term allegations for sentencing purposes, and sentenced defendant to six years in state prison.
All further statutory references are to the Penal Code unless stated otherwise.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
I. Statement of Facts
On June 28, 2009, Officer Pablo Andrade, who was familiar with defendant, encountered him near a bar. After Officer Andrade asked defendant if he was still on parole, defendant responded that he was. Officer Andrade then confirmed defendant’s parole status through his dispatch office. When Officer Andrade informed defendant that he intended to perform a parole search of his person, defendant began running. Officer Andrade followed him. At one point, defendant ducked down between two cars, but then he kept running. Officer Andrade eventually apprehended defendant, searched him, and found a loaded magazine clip containing six.22 caliber bullets. After retracing the route that defendant had taken, Officer Andrade found a.22 caliber Ruger pistol where defendant had ducked down between the cars. The pistol was loaded with a clip of bullets. Officer Andrade never saw defendant toss anything as he ran.
II. Discussion
Appointed appellate counsel has filed an opening brief that states the case and the facts but raises no issues. Defendant was notified of his right to submit written argument on his own behalf. He has filed a letter brief in which he raises several issues.
Defendant contends that the trial court abused its discretion in denying his Marsden motion. We review the trial court’s denial of a Marsden motion under the abuse of discretion standard. (People v. Barnett (1998) 17 Cal.4th 1044, 1075.) “To the extent there was a credibility question between defendant and counsel at the hearing, the court was ‘entitled to accept counsel’s explanation.’ ” (People v. Smith (1993) 6 Cal.4th 684, 696, quoting People v. Webster (1991) 54 Cal.3d 411, 436.) Here, defendant asserted at the hearing that he had been deprived of the effective assistance of counsel because trial counsel failed to bring a timely motion to disqualify the judge pursuant to Code of Civil Procedure section 170.6 and failed to conduct an investigation. According to trial counsel, when defendant informed him that he wanted to bring this motion, counsel explained that the motion was untimely. Trial counsel also noted that an investigator had been working on defendant’s case for six months and had interviewed several witnesses. Since the trial court implicitly found counsel’s explanations credible, defendant has failed to show that the trial court abused its discretion in denying the Marsden motion.
Defendant next asserts that he was not on parole when the police conducted a search of his person. At the preliminary hearing in the present case, Officer Andrade testified that defendant told him he was on parole and that he confirmed with the dispatch office that defendant was on parole. Accordingly, there was substantial evidence that defendant was on parole.
However, defendant has attached a reporter’s transcript in connection with another case. This transcript of a change of plea hearing has not been certified. However, according to defendant, the transcript establishes that he was not on parole when he was searched by Officer Andrade. After defendant entered his guilty plea, the trial court sentenced defendant to two years in prison with credit for time served. When defendant objected to being placed on parole for three years, there was a discussion off the record. After the proceedings resumed, the trial court stated that defendant would be on parole. Thus, this record does not establish that defendant was not on parole at the time of the search in the present case.
Defendant also argues that the trial court erred in denying his request for a continuance.
“ ‘Continuances shall be granted only upon a showing of good cause.’ (Pen. Code, § 1050, subd. (e).) ‘The granting or denial of a continuance... traditionally rests within the sound discretion of the trial judge.’ [Citation.]” (People v. Beeler (1995) 9 Cal.4th 953, 1003.) Here, defendant has failed to show that the trial court abused its discretion in denying his request for a continuance.
Defendant next claims that his trial counsel never informed him that he would not be eligible for “half-time” credits. This claim can only be resolved in a habeas corpus proceeding rather than on appeal. (People v. Barella (1999) 20 Cal.4th 261, 271-272.)
Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.