Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. VA093852 Cynthia A. Zuzga, Commissioner and Yvonne T. Sanchez, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Anthony Garcia appeals from the judgment entered following a court trial in which he was convicted of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and found to have suffered two prior convictions of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i).) Imposition of sentence was suspended and he was placed on formal probation for three years under the terms and conditions of Proposition 36.
He was found not guilty of driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)).
FACTUAL AND PROCEDURAL SUMMARY
The court granted appellant’s motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 for complaints of false reports and acts of moral turpitude against arresting officer Christopher Schallipp. Following an in camera hearing, the court found no discoverable items.
Appellant’s motion pursuant to Penal Code section 995 was denied.
Appellant’s motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 was denied.
Appellant’s motion to suppress evidence pursuant to Penal Code section 1538.5 heard concurrent to the trial was denied.
On February 9, 2006, at approximately 10:00 p.m., California Highway Patrol Officer Schallipp was on patrol on Firestone in the County of Los Angeles when he saw appellant driving a vehicle with just its yellow parking lights illuminated instead of headlights. Officer Schallipp also observed the car weaving over the two solid yellow lines in the center of the roadway. Appellant’s vehicle, traveling approximately 50 miles per hour, passed the officer’s vehicle, exceeding the posted speed limit of 40 miles per hour. After observing appellant’s vehicle veer over the double yellow line one or two more times, Officer Schallipp activated his overhead emergency lights and initiated a traffic stop. Appellant’s vehicle traveled through the intersection and drove into a gas station, striking the right curb. When Officer Schallipp approached appellant, the officer noticed an odor of an alcoholic beverage emitting from the vehicle, and appellant’s eyes were bloodshot and watery. Appellant first denied drinking alcohol but then admitted drinking a beer earlier. Based on appellant’s admission, his inability to perform the field sobriety test, and his driving, the officer arrested him for a misdemeanor violation of Vehicle Code section 23152, subdivision (a).
As Officer Schallipp was about to search appellant incident to the arrest, appellant blurted out, “‘I have drugs in there [referring to his left front pocket].’” Inside that pocket, Officer Schallipp retrieved a plastic baggie containing a white powdery substance resembling cocaine, another plastic baggie containing a green, leafy-like substance resembling marijuana, a glass cylinder, and copper wool. Appellant became belligerent, claimed his civil rights had been violated, and asked to speak to a supervisor. Appellant spoke to Officer Schallipp’s supervisor and was then booked. A breath test at the police station determined appellant’s alcohol level was .06.
The white substance was analyzed and determined to be .19 gram of a substance containing cocaine base, a usable quantity.
Senior Criminalist Catherine Navetta testified that most people will be impaired to drive safely by the time they reach a .05 blood-alcohol level. It was her opinion that a person with a .06 reading would most likely be impaired to drive safely. A 240- pound male having a level of .06 would have the equivalent of a little more than three 12-ounce containers of beer in his system at the time of the test.
In defense, appellant testified that his vehicle’s headlights had been on and that when he passed the patrol vehicle, the patrol vehicle was stopped. Earlier in the day, he ate a burrito and drank a 40-ounce container of beer. He had not driven over the yellow line in the middle of the road. He “tapped” the curb when driving into the gas station because the light startled him.
After being placed under arrest, the Officer’s partner pointed a taser at appellant’s head and said “something like don’t fucken move or I’ll taser your ass.” Appellant became very frightened. After he was handcuffed, he was upset and wanted to speak to the officer’s supervisor. The handcuffs were very tight and he asked for them to be loosened. Officer Schallipp and his partner taunted him and threatened him. Appellant requested that he be given a blood test but he was not given one.
Appellant admitted he had been convicted of attempted robbery in 1989. He claimed it was an involuntary plea because he did not understand his rights. He also admitted he had been convicted in 1989 of possession of cocaine. He did not dispute that they were strikes.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On August 17, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider and no response has been received to date.
On December 14, 2007, on the court’s own motion, we ordered the record on appeal be augmented to include the sealed transcript of the in camera proceedings in reference to appellant’s Pitchess motion. On January 16, 2008, the augmented/supplemental record was filed.
We have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.