Opinion
E041031
5-3-2007
THE PEOPLE, Plaintiff and Respondent, v. FREDERICK STEINER, Defendant and Appellant.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
After his motion to suppress was denied, defendant pled guilty to possession of ammunition by an ex-felon (Pen. Code, § 12316, subd. (b)(1)), possession of a firearm by an ex-felon (Pen. Code, § 12021, subd. (a)(1)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possession of a smoking device (Health & Saf. Code, § 11364). He further admitted having suffered a strike prior. (Pen. Code, §667, subds.(b)-(i).) As part of his plea bargain, he waived his right to appeal. His request for a certificate of probable cause was denied by the trial court.
FACTS
On October 19, 2004, officers went to the home of defendants girlfriend to arrest, pursuant to warrants, her brother, who lived with her and was a parolee. The girlfriend told the officers that her brother was not there, that defendant was, and they could search the home for her brother. The officers saw defendant in a bedroom sitting in front of a computer. They entered the room and defendant stood up, revealing that he was wearing a very baggy shirt. The officers had arrested 5-10 wanted felons, some of whom were armed and dangerous, at or near the house and had had 20-30 encounters with the girlfriend, including an arrest that involved her brother. For their safety, the officers asked to pat defendant down and search his pockets and they asked him if he had anything illegal on him. Defendant said he did not. When an officer began patting him down, defendant told him to check his top pocket, where the officer found methamphetamine. After defendant was arrested, a glass pipe with residue and a loaded magazine was also found on his person. In defendants vehicle parked outside officers found the rifle which the magazine fit. At booking, defendant gave as his home address one that was not the same as the girlfriends. The trial court denied defendants motion to suppress the search and seizure, concluding that he had no standing to object to the officers entry into the home, because he did not live there, and although he had standing to object to the officers search of him and his vehicle, their actions were proper.
DEFENDANTS APPEAL
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to undertake a review of the entire record.
We invited defendant to submit a personal supplemental letter brief, which he has done. This brief is composed of one and one-half pages of analysis by defendant, copies of three pages of the Peoples written response below to defendants motion to suppress, and copies of five pages from the hearing on the motion. In his analysis, defendant does not contest the denial of his motion to suppress based on the facts that were adduced at the hearing on the motion. Rather, he contends that the failure of the People to call his girlfriend as a witness at the hearing constituted a Brady violation (Brady v. Maryland (1963) 373 U.S. 83 ) because she would have testified to facts that would have enabled him to persuade the court below that he had standing to contest the officers entry into the house. He does not address the remainder of the trial courts ruling on the motion, which, aside from the issue of standing, supported the denial of the motion. Were defendant merely relitigating the issues determined below as part of his motion to suppress, his waiver of his right to appeal, his guilty plea and his failure to obtain a certificate of probable cause would not prohibit our entertaining his contention, however pointless it might be in light of the trial courts conclusion that the search and seizure were proper. However, defendant is, essentially, for the first time, contending that his attorney below was incompetent for failing to bring a Brady motion and/or for failing to call his girlfriend during the hearing on the motion. Given that he pled guilty, waived his right to appeal and failed to obtain a certificate of probable cause, he may not do this. (See People v. Mendez (1999) 19 Cal. 4th 1084, 1094-1095.)
Our independent evaluation of the record discloses no other basis for reversal.
DISPOSITION
The judgment is affirmed.
We concur:
McKINSTER, J.
RICHLI, J.