Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF22970, Eleanor Provost, Judge.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
It was alleged in an information filed March 21, 2007, that appellant Kenneth Richard McLeod committed the following offenses: possession of marijuana for purposes of sale (Health & Saf. Code, § 11359; count 1), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2), and possession of drug paraphernalia (Health & Saf. Code, § 11364; count 3).
On May 25, 2007, appellant filed a notice of motion to suppress evidence. On June 15, 2007, following an evidentiary hearing, the court denied the motion.
On July 16, 2007, appellant pled guilty to the count 1 offense and the court dismissed counts 2 and 3.
On August 15, 2007, in sentencing appellant on both the instant case and Tuolumne County Superior Court case No. CRF22797 (case No. 797), the court imposed a sentence of three years eight months, consisting of the principal term of three years in case No. 797 and a subordinate term of eight months in the instant case, representing one-third of the midterm for the count 1 offense.
The instant appeal followed. In his notice of appeal, appellant stated his appeal is based on the denial of his suppression motion.
Appellant did not request, and the court did not issue, a certificate of probable cause (Pen. Code, § 1237.5).
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing. We will affirm.
FACTS
Basis for Suppression Motion
Appellant moved to suppress evidence on the grounds that the search that uncovered the evidence could not be justified as a search incident to a lawful arrest because (1) the arrest was not lawful, and (2) even if the arrest was lawful, the challenged search was beyond the scope of the arm’s-reach rule of Chimel v. California (1969) 395 U.S. 752.
Evidence Adduced at Suppression Motion Hearing
On January 10, 2007, Tuolumne County Deputy Sheriff Timothy Wertz learned from a document issued by the “warrants division” of the Tuolumne County Sheriff’s Department that an arrest warrant had been issued for appellant. The deputy “telephoned … dispatch and asked them if the warrant was active, and they confirmed that it was active.” Later that night, at approximately 9:00 p.m. to 10:00 p.m., Deputy Wertz went to McLeod’s Pet Emporium, a business owned by appellant.
Information in this section is taken from the testimony of Deputy Wertz, the sole witness at the hearing on the suppression motion.
Appellant opened the door to the store, and the deputy informed him “that he had a warrant,” and asked appellant “if he wanted to go get it taken care of.” Appellant said “he wanted to go take care of it.”
At that point, Deputy Wertz asked appellant, who was not wearing shoes, “if he wanted to get shoes on.� Appellant walked to the back of the store and the deputy followed him. Appellant sat on a bench, started to put his shoes on and asked Deputy Wertz if he could get “a new pair of socks.�
There was a suitcase on the floor within appellant’s reach. Deputy Wertz directed appellant “to get his socks out of his suitcase,” and appellant responded that he had clothes in the suitcase but he needed to go to his truck to get socks. The deputy told appellant, “you’re not going to go out to the truck so get them out of the suitcase” but appellant “made it clear that he did not want to get [socks] out of the suitcase.” At that point, the deputy “just lifted up the lid” of the suitcase and opened it. Inside the suitcase were several jars containing what the deputy believed to be marijuana.
DISCUSSION
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
The judgment is affirmed.