Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BA354462
THE COURT:Kevin Smith appeals his judgment of conviction of transportation and possession of marijuana. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On August 9, 2010, we notified appellant of his counsel’s brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered. That time has elapsed, and appellant has submitted no brief or letter. We have reviewed the entire record, and finding no arguable issues, affirm the judgment.
On April 21, 2009, appellant was charged with codefendant Daniel Noel Shaw, Jr., (Shaw) in a two–count felony information, of transporting marijuana in violation of Health and Safety Code section 11360, subdivision (a) (count 1), and possession of marijuana for sale, in violation of Health and Safety Code section 11359 (count 2).
Appellant’s jury trial went forward December 1, 2009.
After the testimony had begun, it came to the trial court’s attention that one of the jurors had recently testified in another, unrelated case for the prosecution. The court questioned the juror, determined that he had witnessed a crime, and felt some bias in favor of the prosecution. The juror was excused for cause, and an alternate juror took his place.
On March 23, 2009, working with several detectives of the Los Angeles Police Department, United States Postal Inspector Cissy Tubbs placed Mail Plus, a commercial mail receiving agency, under surveillance due to past mailing of illegal narcotics from the nearby post office. Los Angeles Police Detective George Beshai, whose primary duties were to profile parcels and track narcotics offenders who used the United States Mail, Federal Express (FedEx), and other means to transport narcotics across state lines, was one of the detectives working with Inspector Tubbs during the surveillance, along with his partner, Detective Stephen Winter.
At approximately 3:00 p.m., the detectives saw appellant arrive at the Mail Plus, driving a rented Toyota Highlander S.U.V., with codefendant Shaw as his passenger. Appellant parked, took a dolly from the Mail Plus to his car, loaded two large, heavily taped boxes onto the dolly, and wheeled them into the Mail Plus. Shaw remained seated in the car, and Detective Beshai, who was in telephone communication with Inspector Tubbs, remained in his car to monitor the Highlander.
Inspector Tubbs entered the Mail Plus in plainclothes, and saw appellant near the counter with two large brown boxes with brown paper tape on all the seams, a method that she knew narcotics traffickers typically used to conceal the odor emanating from the package. Appellant stated to the shop owner that one parcel contained a chair and the other an ottoman. He paid in cash and was given a FedEx receipt showing Brooklyn, New York, as the delivery location. Inspector Tubbs testified that Brooklyn was a known destination city for illegal narcotics, such as marijuana, and that drug traffickers typically paid shipping charges in cash.
Appellant came out of the Mail Plus about 15 or 20 minutes after going in, and returned to the Highlander. After appellant had left the shop, Inspector Tubbs identified herself to the owner. Shaw then entered the store and asked the owner for a certain type of box. When the owner went to the back, he peered behind the counter, and then left the store without making a purchase.
Appellant and Shaw remained seated in the parked Highlander for about 45 or 50 minutes. When they left, Detectives Beshai and Stephen Winter radioed patrol to stop them, and they were detained within five minutes.
A few minutes before 4:30 p.m., the FedEx driver arrived to pick up packages, and Inspector Tubbs informed him that she was investigating the two boxes. Canine unit Detective Robert Alvarez entered from the rear of the store with his dog, Robo, who scratched at one of the boxes. Inspector Tubbs testified that the boxes were then seized. Detective Beshai testified that the FedEx driver was permitted to pick the boxes up, but after he left, the officers called him on his cell phone and recovered the boxes.
When officers searched the Highlander, they found a key to a storage space, as well as some documents which led them to a storage facility on South La Cienega Boulevard. Before the officers used the key to open the storage space, a narcotics dog indicated the presence of narcotics, and a search warrant was obtained. Inside, they found a number of duffle bags and tote bags of the kind commonly used to transport narcotics prior to packaging them for shipment. The officers also found ammonia and foam packing material (peanuts).
Later, at the police station, Detective Beshai, Detective Winter, and Inspector Tubbs watched as the boxes were opened. The officers found foam peanuts, ammonia, which is usually used to mask the odor of drugs, and marijuana. Under an outer layer of peanuts, there was a second box, which Detective Beshai described as a common way to pack narcotics for the transportation. The second box contained additional peanuts surrounding a large “party ball, ” which Detective Beshai described as marijuana wrapped in plastic film and newspaper, which smelled of ammonia.
The parties stipulated that the contents of the boxes were examined by Los Angeles Police Department criminalist G.A. Johnson, who determined that one contained 38 pounds of green plant material containing marijuana, and that the other contained 37 pounds of green plant material containing marijuana.
The defense presented no witnesses.
The jury convicted appellant of both counts, and acquitted Shaw. The trial court reviewed the evidence presented, the preplea probation report, noting that the Probation Department recommended probation, and analyzed California Rules of Court, rule 4.414, the criteria affecting the decision to grant or deny probation, as well as rule 4.410, the general objectives in sentencing. The court denied probation, finding that the criminal sophistication shown in this case mandated prison. Because appellant’s criminal history was minimal, however, the court selected the low term of two years for count 1, and the low term of 16 months as to count 2. The sentence as to count 2 was then stayed pursuant to Penal Code section 654.
In addition to the prison term, the trial court imposed a $200 restitution fine, $200 parole revocation restitution fine, stayed pending completion of parole, a $50 laboratory analysis fee, a $150 drug program fee, a $30 court security assessment, and a $30 criminal conviction assessment. The court gave appellant 112 days of presentencing custody credit, which included 56 actual days and 56 local conduct credit.
Appellant filed a timely notice of appeal on March 8, 2010.
Because of counsel’s compliance with the Wende procedure and our review of the record, we conclude appellant has 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.)
The judgment is affirmed.