People v. Hicks CA4/2 ( 2014 )

Filed 6/6/14 P. v. Hicks 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
Plaintiff and Respondent, E059671
v. (Super.Ct.No. FWV1301639)
SEAN DARYL HICKS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Stanford E.
Reichert, Judge. Affirmed.
Steven A. Brody, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Sean Daryl Hicks was charged by information with
transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a), count 1)
and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), count
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2). It was also alleged that he had suffered a prior conviction of Health & Safety Code
section 11378, within the meaning of Health & Safety Code section 11370.2, subdivision
(c), and that he had served one prior prison term (Pen. Code, § 667.5, subd. (b)).
Defendant filed a motion to suppress evidence. (Pen. Code, § 1538.5.) Following a
hearing, the trial court denied the motion. The information was subsequently amended to
add a count 3 for possession of a controlled substance for sale. (Health & Saf. Code,
§ 11378.) Pursuant to a plea agreement, defendant pled no contest to count 3 and
admitted the allegation that he had previously been convicted of Health & Safety Code
section 11378. In exchange, the court dismissed counts 1 and 2 and struck the prison
prior. The court sentenced defendant to four years and four months in county prison and
awarded 206 days of presentence custody credits.
Defendant filed a timely notice of appeal. We affirm.
FACTUAL BACKGROUND
The following facts are taken from the suppression motion hearing transcript:
Officer James Mikkelsen was on patrol at 11:00 p.m. on May 11, 2013, when he saw
defendant’s truck leave a motel parking lot. The truck’s windows appeared to be illegally
tinted, so he conducted a traffic stop at 11:09 p.m. Officer Mikkelsen contacted the
driver of the truck, defendant, and asked for his driver’s license, registration, and proof of
insurance. Defendant said he did not have any insurance. Officer Mikkelsen noted this
lack of insurance as another violation of the Vehicle Code. He asked defendant to exit
the vehicle and asked if defendant had ever been arrested before. Defendant said he had
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been arrested “for drugs.” Officer Mikkelsen knew the motel that defendant just came
from was a known narcotics location. Because of this knowledge and defendant’s past
arrest for drugs, Officer Mikkelsen requested Officer Zachary McWaters to respond to
the scene with his drug-detecting K-9. The request was made at approximately
11:14 p.m. Officer McWaters had to go to another call first and said he would come after
that. Officer Mikkelsen then began writing defendant’s traffic citations. Officer
McWaters arrived at the scene at 11:33 p.m. Defendant gave Officer McWaters
permission to have his dog sniff the exterior of the car. The dog detected an odor of
narcotics at the driver’s side door. Officer McWaters opened the driver’s door and
allowed the dog to go inside to sniff. The dog indicated a smell in between the front
seats. Officer Mikkelsen searched under the passenger seat and found a bag that
contained a glass pipe, a digital scale, and a plastic baggie containing a substance that
was later determined to be methamphetamine.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the case and two potential arguable issues: 1) whether defendant waived his right to
appeal his suppression motion, even though the court did not advise him of the appellate
waiver; and 2) whether the court erred in denying the motion to suppress, since the police
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officer unnecessarily prolonged a traffic stop without reasonable suspicion. Counsel has
also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
MILLER
J.
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