Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. VCF207648C of Tulare County. Joseph A. Kalashian, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Dawson, A.P.J., Hill, J., and Kane, J.
On June 6, 2007, an employee at the Jay Street Bar and Grill in Tulare stepped outside the bar to smoke a cigarette. Appellant, Brian Scott Joseph Harris, walked up behind him, put a gun to the back of his head, and ordered the employee to give him money. After the employee stated that he did not have any, Harris walked the employee back into the bar and took a total of approximately $476 from a tip jar and a cash register. Harris was arrested on June 9, 2007 (case No. VCF185176).
Harris was subsequently released on bail in case No. VCF185176 and failed to appear for a court hearing on January 8, 2008.
On July 31, 2008, at approximately 1:00 a.m., Joseph Perry was sleeping in his home in Strathmore when he heard two loud sounds as three men kicked in his front door. After the men entered his bedroom, Perry saw that one man wore a dark colored mask and another, a light colored mask. The third man did not wear a mask but stood mostly in the shadows. Two of the men appeared to be African American and the third, Caucasian. The men demanded money and Perry told them there was some in his wallet, which was in a drawer. The three men then wanted to know where a safe and Perry’s car were located, and one of the robbers repeatedly threatened to kill Perry.
Perry told the men his car was in the shop. Eventually the men took Perry there and kicked the shop’s door open. The men kept asking Perry where the safe was and threatening to shoot him, but eventually they ran off. The men took Perry’s wallet and money clip and a total of $192.
Tulare County Sheriff’s Deputy Derek Hood was in his patrol car stopped in a parking lot when he saw a silver vehicle pass by followed by a Ford Mustang which had its back license plate light off. Deputy Hood lost the Mustang but saw it again 30 minutes later. Hood activated his overhead emergency lights and pulled over the car within a couple of miles of Strathmore. He approached the car on the front passenger’s side and spoke to the driver, Joseph Ford, through the open front passenger’s door because the door’s window was inoperable. Tevin McDowell was sitting in the front passenger’s seat and Harris in the back. Harris had mud on the boots he was wearing.
Two of the car’s occupants, including Harris, were African American and the third, Caucasian.
After getting Ford’s driver’s license, the car registration, and the names and dates of birth of all the occupants, Deputy Hood went to his patrol car to check Ford’s driver’s license and to check for warrants for the three men. Deputy Hood was waiting for a return on the license and warrant checks when he heard on his police radio that another deputy had gone to check on a reported home invasion robbery. According to the dispatch, two suspects involved in the home invasion robbery were African American and one was Caucasian. Deputy Hood called the deputy who responded to the home invasion robbery and asked if there was any wet dirt in the area where the robbery had occurred. The deputy reported that there was water running in the grove near the scene and muddy shoe prints on the porch of the house that was broken into.
Sheriff’s Detective William Seymour interviewed McDowell after he was arrested. McDowell admitted to Seymour that he, Ford, and Harris had broken into the victim’s house. According to McDowell, Harris and Ford wore masks and Harris was the one who spoke to the victim and threatened him. McDowell denied that anyone took anything from the victim’s house. However, Seymour found $193 on McDowell that McDowell claimed he had gotten from work and an ATM.
Seymour also interviewed Ford. Ford stated that Harris told him and McDowell that he knew a house they could “hit” and get some money. According to Ford, the group followed a woman to the victim’s house and she parked her car in front of their car (case No. VCF207648).
On August 4, 2008, in case No. VCF207648, Harris filed a motion to suppress evidence alleging that, on the night of the home invasion robbery, the car he was riding in was subject to an unduly prolonged detention during which certain incriminating evidence was recovered.
On September 24, 2008, the district attorney filed an information in case No. VCF207648 charging Harris with one count each of home invasion robbery (count 1/Pen. Code, § 211), first degree burglary (count 2/Pen. Code, § 459), making criminal threats (count 3/Pen. Code, § 422), failure to appear (count 4/Pen. Code, § 1320.5), and an on bail enhancement (Pen. Code, § 12022.1).
On October 3, 2008, the court denied Harris’s suppression motion. Also on that date, in case No. VCF185176, Harris pled no contest to robbery and admitted an arming enhancement (Pen. Code, § 12022.53, subd. (b)). In case No. VCF207648 Harris pled no contest to home invasion robbery, first degree burglary, and failure to appear, and admitted the on bail enhancement.
On October 6, 2008, Harris renewed his motion to suppress evidence.
On October 23, 2008, the court conditionally granted Harris’s motion to withdraw his plea in order to allow his motion to suppress to be heard.
On November 13, 2008, the court denied Harris’s motion to suppress and reinstated his no contest plea. On December 9, 2008, the court sentenced Harris to an aggregate term of 16 years in both cases: the mitigated term of 2 years on his robbery conviction in case No. VCF185176, a 10-year arming enhancement in that case, a 2-year term on his home invasion robbery conviction in the instant case (one third the middle term of 6 years), and a 2-year on bail enhancement.
Harris’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Harris has not responded to this court’s invitation to submit additional briefing.
Following independent review of the record, we find that no reasonably arguable factual or legal issues exist.
The judgment is affirmed.