People v. Calvert CA2/2 ( 2014 )

Filed 11/6/14 P. v. Calvert CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B254066
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA092276)
v.
TYRONE N. CALVERT,
Defendant and Appellant.
THE COURT:*
An information alleged that defendant and appellant, Tyrone N. Calvert, possessed
cocaine base for sale in violation of Health and Safety Code section 11351.5. It further
alleged that he had suffered a prior “strike” (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12,
subds. (a)-(d)) and seven prior prison terms (Pen. Code, § 667.5, subd. (b)).
The information stemmed from appellant’s arrest on May 2, 2012. That afternoon,
Long Beach Police Officers Jason Ur and Chris Thue were surveilling an area by a motel
after receiving complaints of narcotics activity. At a nearby intersection, Officer Ur
observed appellant engage in a hand-to-hand transaction with another individual, which
* ASHMANN-GERST, Acting P.J., CHAVEZ, J., HOFFSTADT, J.
he knew was a common manner of selling drugs. He then saw appellant walk toward the
motel, again exchanging items with several other individuals along the way, and
Officer Thue saw him enter room 211. Officer Thue learned from the motel manager that
room 211 was registered to appellant and further learned from both police dispatch and
the police vehicle computer that appellant was on active parole.
When appellant left his room, officers detained him. In response to Officer Thue’s
inquiry about his parole status, appellant responded that he was on parole, scheduled to
be discharged the following month. Appellant denied making that statement, asserting
that he told the officers he was no longer on parole. According to Officer Thue, appellant
consented to a parole search of room 211, and responded affirmatively to his question
whether there was dope in the room. Appellant denied having that conversation.
Officers recovered a pile of chopped up rock cocaine and over 40 wrapped and
unwrapped rocks. Officers later learned that appellant’s parole had in fact ended eight
days before the search.
Appellant initially pled not guilty. The trial court granted appellant’s Pitchess
motions (see Pitchess v. Superior Court (1975) 11 Cal. 3d 531 (Pitchess)) limited to
matters of dishonesty or false reporting by the officers involved in the case, and found no
discoverable information after an in camera hearing. It denied appellant’s Penal Code
section 1538.5 motion to suppress. Appellant thereafter changed his plea to no contest,
and the trial court sentenced him to a total term of six years, comprised of the upper term
of five years for the Health and Safety Code section 11351.5 violation and one year for
the prison prior. Over the prosecution’s objection, it struck the prior strike.
Appellant appealed and we appointed counsel to represent him. After examination
of the record, counsel filed an opening brief which contained an acknowledgement that
she had been unable to find any arguable issues, but which also requested that we
undertake an independent review of the in camera Pitchess hearing. On
September 9, 2014, we advised appellant that he had 30 days within which to personally
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submit by brief or letter any contentions or arguments that he wished us to consider.
Appellant timely filed a supplemental brief.
We have examined the entire record, including the sealed transcript of the Pitchess
hearing, and are satisfied that appellant’s attorney has fully complied with her
responsibilities and that no arguable issue exists. (People v. Wende (1979) 25 Cal. 3d
436, 441.) Moreover, though appellant’s supplemental brief addresses specific
justifications for searches without a warrant, including those incident to arrest and due to
exigent circumstances, the trial court here analyzed whether there was any basis to
suppress evidence obtained as a result of mistaken information that appellant remained on
parole. Because negligent police miscommunications do not require the exclusion of
evidence (Herring v. United States (2009) 555 U.S. 135, 144-145), the record supports
the trial court’s denial of the motion to suppress.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
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