Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC068255
Banke, J.
Defendant Derek D. Vuong appeals from a judgment and sentence following a no contest plea to one count of possessing marijuana for sale (Health & Saf. Code, § 11359) and one count of theft of utility services (former Pen. Code, § 498, subd. (d)) and admission of an arming allegation in connection with the Health and Safety Code section 11359 charge. His attorney has filed a brief raising no issues and asks this court to conduct an independent review of the record to identify any issues that could result in reversal or modification of the judgment if resolved in defendant’s favor. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel declares she notified defendant he could file a supplemental brief raising any issue he wishes to call to this court’s attention. Defendant filed no supplemental brief.
Upon independent review of the record, we conclude no arguable issues are presented for review and affirm.
BACKGROUND
On December 3, 2008, Narcotics Task Force Agent Mike Toscano observed the windows of the house located at 1017 Skyline Drive were covered and also moist with condensation. He also heard a constant “buzzing, ” consistent with the noise of high-powered fans. Based on his training and experience, he suspected the house was being used to grow marijuana. He obtained a search warrant, which was executed on December 16, 2008. Agents found defendant in the house, along with an extensive “grow” operation and multiple firearms and ammunition. The electrical meter had been “bypassed.” (PG&E estimated nearly $145,000 worth of power had been purloined.) They also found bills referencing another location, 197 Alta Vista Way.
Agent Gilberto Gomez went to the Alta Vista address and observed the windows were similarly obscured and moist with condensation. He heard a “loud humming, ” consistent with high-powered fans. He suspected this was also a “grow” house and obtained a search warrant, which was also executed on December 16. Agents found another extensive cultivation operation and that the electric meter had been “bypassed.” (PG&E estimated nearly $118,000 worth of power had been stolen at this address.)
On December 18, 2008, the San Mateo District Attorney filed a complaint charging defendant and Chong Cha Teena Kong with one count of possession of marijuana for sale (Health & Saf. Code, § 11359), two counts of cultivation (Health & Saf. Code, § 11358), and alleging multiple firearm enhancements. The complaint also charged defendant and Kong with two counts of stealing utility services exceeding $400 in value (former Pen. Code, § 498, subd. (d)) and one count of making available property for the manufacturing, storing or distributing a controlled substance (Health & Saf. Code, § 11366.5, subd. (a)). On December 31, 2008, the district attorney filed an amended complaint, adding additional arming enhancement allegations.
A preliminary hearing commenced on February 6, 2009, and was heard over a period of five dates. The court held defendant to answer on all charges and enhancement allegations made against him, except the charge of making available property for the manufacturing, storing or distributing a controlled substance (Health & Saf. Code, § 11366.5, subd. (a)).
On March 25, 2009, the district attorney filed an information charging defendant and Kong with possession of marijuana for sale (Health & Saf. Code, § 11359), two counts of cultivation (Health & Saf. Code, § 11358), and multiple firearm enhancements. The information also charged defendant with two counts of stealing utility services exceeding $400 in value (former Pen. Code, § 498, subd. (d)) and alleged he had previously suffered a juvenile adjudication of first degree robbery within the meaning of the three strikes law.
On April 23, 2009, defendant joined in a motion to suppress filed by Kong. The thrust of the motion was that the search warrant issued for the Skyline Drive premises did not permit a search of the attached garage and car parked therein. On April 27, 2009, defendant interposed a demurrer to the prior strike allegation based on his juvenile adjudication and made a Penal Code section 995 motion to strike eight alleged firearm enhancements and to dismiss one of the cultivation counts. The thrust of the latter motion was that marijuana cultivation at two different residential properties constituted, and should have been charged, as only one criminal act of cultivation. The trial court heard argument on and denied all motions on May 15, 2009.
The portion of the hearing on the demurrer was not reported.
Following a pretrial conference, defendant agreed to a negotiated disposition and completed a written change of plea form. After being duly advised and admonished by the trial court, he entered a no contest plea to one count of felony possession of marijuana for sale (Health & Saf. Code, § 11359) with a firearm enhancement (Pen. Code, § 12022, subd. (a)(1)) and one count of felony theft of utility services (former Pen. Code, § 498, subd. (d)), and admitted the prior juvenile adjudication of first degree robbery. Defendant entered Harvey and Arbuckle waivers and reserved his right to make a Romero motion.
People v. Harvey (1979) 25 Cal.3d 754.
People v. Arbuckle (1978) 22 Cal.3d 749.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The case came on for sentencing on September 10, 2009. Defendant made a motion to “withdraw [his] plea” on the ground the files in his juvenile proceedings had been sealed and therefore could not be considered for any purpose and alternatively made a Romero motion. After a lengthy hearing, the trial court denied the motion to withdraw, granted the Romero motion, and, at defendant’s request, continued the matter for sentencing. On October 22, 2009, the court sentenced defendant to state prison for two years eight months, including the midterm of two years for utility theft and one-third the midterm for possession for sale, stayed the firearm enhancement, imposed fines, fees and assessments, and awarded 465 days of in-custody credit. On November 4, 2009, defendant sought and obtained a certificate of probable cause on whether Penal Code section 12022, subdivision (a)(1), on which the firearm enhancement was based, was unconstitutional “where a resident of a house” is in “possession of a legal and registered, unloaded firearm in the house.”
DISCUSSION
Upon our independent review of the record we find no meritorious issues that require further briefing on appeal. He was competently represented by appointed counsel at all times. The trial court properly denied his motion to suppress. At the change of plea hearing, he was fully advised on the record and entered into appropriate waivers. The trial court granted his Romero motion. There were no sentencing errors. There is no merit to his suggestion Penal Code section 12022, subdivision (a)(1) was unconstitutionally applied in this case. (See People v. Bland (1995) 10 Cal.4th 991, 1004, fn.6, 1006.)
DISPOSITION
The judgment is affirmed.
We concur: Margulies, Acting P. J., Dondero, J.