People v. Sanders CA1/3 ( 2014 )

Filed 6/30/14 P. v. Sanders CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A139416
v.
DONALD L. SANDERS, (San Mateo County
Super. Ct. No. SC073473A)
Defendant and Appellant.
This is an appeal from judgment following entry of a no-contest plea by appellant
Donald L. Sanders to one count of possession of marijuana for sale in violation of Health
and Safety Code section 11359 in Case No. SC073473. Pursuant to the negotiated
disposition, the trial court suspended imposition of a sentence and placed appellant on
supervised probation for three years subject to various terms and conditions, including
that he serve 120 days in county jail. Appellant received one day of presentence custody
credit, and the trial court thereafter granted the People’s motion to dismiss Case No.
SCO76142, which had previously been consolidated with this case on the People’s
motion.
After appellant filed a timely notice of appeal, appellate counsel was appointed to
represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal. 3d 436 (People v. Wende) in which he raises no issue for appeal and asks this
court for an independent review of the record. (See also People v. Kelly (2006) 40
Cal. 4th 106, 124 (People v. Kelly).) Counsel attests that appellant was advised of his
right to file a supplemental brief in a timely manner, but he has not exercised this right.
1
Keeping in mind our review is limited to grounds for appeal occurring after entry
of the negotiated disposition,1 we have examined the entire record in accordance with
People v. Wende. For reasons set forth below, we agree with counsel that no arguable
issue exists on appeal. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 17, 2011, an information was filed in this case, SC073473, charging
appellant with one count of possession of marijuana for sale. This charge stemmed from
appellant’s arrest on July 27, 2009, following a traffic stop for certain Vehicle Code
violations, during which the officer noted a strong marijuana odor emanating from
appellant’s vehicle. After appellant admitted possessing marijuana and directed the
officer to a paper bag in the backseat containing five plastic bags with a total of 117.75
grams of marijuana, the officer conducted a more thorough search that revealed, among
other things, over $1,300 in cash (mostly in $100 bills) and a cell phone text message
consistent with a request to appellant to purchase marijuana.2
On May 26, 2011, appellant entered a plea of not guilty to the charge of
possessing marijuana for sale. However, after filing a motion to suppress evidence seized
during his July 27, 2009 arrest (Pen. Code, § 1538.5), appellant ultimately decided to
change his plea to no contest pursuant to a negotiated disposition. After accepting this
plea, the trial court granted appellant’s request to proceed immediately to sentencing.
1
Appellant’s notice of appeal sets forth the following grounds: (1) the sentence,
(2) the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5,
and (3) the validity of the plea. After this notice was filed, however, the trial court denied
appellant’s request for a certificate of probable cause, rendering the validity of the plea
not subject to appeal. In addition, appellant’s motion to suppress evidence was vacated
before the scheduled hearing on the motion upon entry of his plea. As such, our review is
limited to grounds for appeal occurring after entry of the negotiated disposition. (Pen.
Code, § 1237.5.)
2
Appellant produced a valid medical marijuana card and told the officer he bought
the marijuana at a medical marijuana dispensary, which he identified. However, the
officer later went to the dispensary identified by appellant, and was told by an employee
that the seized marijuana had not been purchased there.
2
Then, after suspending imposition of appellant’s sentence, the trial court placed him on
supervised probation for three years subject to various terms and conditions, including
that he serve 120 days in county jail. Appellant also received credit for one day served.
On July 9, 2013, appellant filed his timely notice of appeal.
DISCUSSION
As mentioned above, neither appointed counsel nor appellant has identified any
issue for our review. Upon our own independent review of the entire record, we agree
none exists. (People v. Wende, supra, 25 Cal. 3d 436; Anders v. California (1967) 386
U.S. 738, 744.)
Prior to a scheduled trial, appellant moved to suppress all evidence seized from his
person and vehicle on July 27, 2009, the date of his detention and arrest. This detention
and arrest occurred when appellant was pulled over pursuant to a legitimate traffic stop
after an officer observed appellant driving a vehicle without a front license plate in
violation of Vehicle Code section 5200, subdivision (a), and with a tinted driver-side
window in violation of Vehicle Code section 26708.5, subdivision (a). After this traffic
stop was initiated, the officer detected a strong odor of marijuana from inside the vehicle.
When asked whether he possessed any marijuana, appellant responded, “yes,” and
directed the officer to a paper bag containing five plastic bags with a total of 117.75
grams of marijuana. A subsequent search of appellant’s vehicle and person revealed,
among other things, $1,305 in cash, most of which was in the form of $100 bills, and a
cell phone with the following incoming text message: “Nigga, . . . answer da’ phone.
Got someone wants to get two zips of dem’ grapes. What’s good?” There was nothing
improper about this search and seizure of evidence, which stemmed from a valid traffic
stop, during which the officer had probable cause to search the vehicle for contraband
based on the strong odor of marijuana emanating from inside. (Brierton v. Department of
Motor Vehicles (2005) 130 Cal. App. 4th 499, 509 [“ ‘police officer may stop and question
persons on public streets, including those in vehicles, when the circumstances indicate to
a reasonable man in a like position that such a course of action is called for in the proper
discharge of the officer’s duties’ ”]; People v. Chavers (1983) 33 Cal. 3d 462, 469
3
[“probable cause to believe that a lawfully stopped automobile contains contraband
justifies an immediate warrantless search of the automobile despite the absence of any
additional exigent circumstances”].)
In any event, this motion to suppress was ultimately vacated by the trial court after
appellant, represented by competent counsel, entered a no-contest plea to the sole charge
of possessing marijuana for sale. Pursuant to the negotiated disposition, the trial court
placed appellant on supervised probation for three years and ordered him to serve 120
days in county jail with one day of credit for time served. The trial court also granted the
People’s motion to dismiss Case No. SCO76142, which had been consolidated with the
present case. This judgment and sentence was imposed only after appellant was advised
of the maximum penalties and other consequences of his plea and, upon being so advised,
knowingly and intelligently gave up his constitutional rights to, among other things, a
trial by jury, and entered the free and voluntary plea.3 The judgment and sentence were
thus lawful. (Pen. Code, §§ 1016-1018, § 1192.5.) Further, having ensured appellant has
received adequate and effective appellate review, we affirm the trial court’s judgment.
(People v. Kelly, supra, 40 Cal.4th at pp. 112-113.)
DISPOSITION
The judgment is affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
3
Appellant requested immediate sentencing, which request the trial court granted
after finding no legal cause why the sentence should not then be pronounced.
4