Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA288759, William R. Pounders, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KLEIN, P. J.
Gary Devon Walker (Walker) appeals from the judgment entered following his plea of no contest to possession for sale of cocaine base (Health & Saf. Code, § 11351.5). The trial court sentenced Walker to three years in prison. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the transcripts of the hearing held on Walker’s motion to suppress evidence and the preliminary hearing.
At approximately 5:00 p.m. on August 16, 2005, Los Angeles Police Officer Hector Chairez (Chairez) and his partner, Officer Garces (Garces), were on patrol on Dinker Avenue in Los Angeles. A probation officer, Officer Esparza (Esparza) was riding along with the officers. When Chairez, who was the passenger in the patrol car, spotted a white Jeep Cherokee sport utility vehicle (SUV) with no hard license plates and a left tail light which was not operating properly, the officers decided to stop the car. Garces activated the red lights on the patrol car and gave a “burst” to the siren in an attempt to pull the vehicle over. When the SUV failed to pull to the side of the road, Garces “gave it another burst [to the] siren” and Chairez used the P.A. system to order the SUV to stop. After driving for several blocks, during which he repeatedly moved toward the center console area of the car, Walker, the driver of the SUV, drove around a corner and pulled to a stop.
The SUV had a “paper license plate” like those displayed on newly purchased cars.
When Walker opened the car door, Chairez could hear music coming from inside the car. Garces ordered Walker to get out of the SUV. However, before doing so, Walker “reached back into the vehicle and made some type of furtive movements as he had been doing while [the officers had been] following him.” Walker then got out of the car and complied with Garces’s order to walk to the rear of the SUV.
Chairez asked Walker if he was on parole or probation and Walker stated that he was on parole. Chairez asked Walker to place his hands on top of his head so that Chairez could perform a parole search and a pat-down search for weapons. As he performed the pat-down search, Chairez felt in Walker’s right coin pocket a small plastic baggie which the officer believed contained marijuana. Chairez removed the baggie from Walker’s pocket and found that it contained a green, leafy substance which resembled marijuana. After completing his search, Chairez handcuffed Walker and placed him in the patrol car.
While Esparza watched Walker, Chairez and Garces searched Walker’s SUV. The officers decided to search the vehicle because Walker was on parole, they had found marijuana on his person, and he had made “furtive” movements while driving and after stopping the car. On the center console, Chairez could see a small piece of plastic protruding from the compartment. Chairez reached in and pulled out a plastic baggie which contained white, “rock-like substances resembling rock cocaine.” After Chairez recovered the rock cocaine, Garces checked the console. From underneath the console, Garces pulled out a loaded handgun.
Walker “did not have any paraphernalia for ingesting cocaine base” and he did not “have any symptoms that a user would have such as burnt fingertips or burnt lips.”
2. Procedural history.
Following a preliminary hearing, on September 16, 2005, an information was filed charging Walker with possession for sale of cocaine base (Health & Saf. Code, § 11351.5), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and the misdemeanor of evading a peace officer (Veh. Code, § 2800.1). It was further alleged that Walker previously had suffered three convictions for robbery (Pen. Code, § 211) and one conviction for discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3) within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Walker pleaded not guilty to the crimes charged and denied the special allegations.
Walker’s Penal Code section 995 motion to set aside the information as to count one, possession of cocaine base for sale, and count three, evading a police officer, was denied on January 11, 2006. His motion for discovery of police officer records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 and exculpatory materials pursuant to Brady v. Maryland (1963) 373 U.S. 83 was heard on March 6, 2006. After performing an in camera review of Officers Chairez’s and Garces’s records, the trial court found no relevant instances of misconduct.
An amended information was filed on May17, 2006. The information charged Walker with possession for sale of cocaine base (Health & Saf. Code, § 11351.5), during the commission of which he was personally armed with a firearm (Pen. Code, § 12022, subd. (c)), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and the misdemeanor of evading a police officer (Veh. Code, § 2800.1). It was further alleged Walker previously had been convicted of five felonies pursuant to the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), & 1170.12, subds. (a)-(d)), including three robberies (Pen. Code, § 211), discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3) and attempting to evade a police officer while driving recklessly (Veh. Code, § 2800.2), and had previously served two prison terms (Pen. Code, § 667.5, subd. (b)).
Walker filed a motion to suppress the cocaine, the marijuana and the gun pursuant to Penal Code section 1538.5. A hearing was held on the motion on July 27, August 10 and August 14, 2006. Following the presentation of evidence, the trial court denied the motion to suppress, stating, “It does appear to the court at this time that the officers had an objective, reasonable, articulable reason to stop and arrest Mr. Walker. And that is for the Vehicle Code violation, the equipment violation initially, and when Mr. Walker failed to stop for the apparent violation of Vehicle Code section 2800.1[,] evading. [¶] And the subsequent search of Mr. Walker and his vehicle was incident to that arrest.”
Jury trial commenced on August 21, 2006. The trial court granted Walker’s motion to bifurcate the trial on the prior convictions and prison terms from that on the substantive offenses.
After deliberating for approximately one and one-half days, the jury submitted the following “request” to the trial court: “ ‘We have come to a unanimous decision on one of the counts[,] but have not, after considerable discussion and debate, been able to reach a unanimous decision on the other two counts and feel we are at an impasse and request further instruction on how to proceed.’ ” When the trial court then asked the jury foreperson if she had “anything in mind . . ., any advice that [she] would ask the court for or ask from the attorneys, either regarding the facts or the law that [might] assist [the jury] in resolving [the] matter,” the foreperson responded, “No.” One of the jurors then asked, “Why weren’t the fingerprints of the gun shared with us, or why wasn’t it fingerprinted?” In response, the trial court stated, “[I]t is the responsibility of the lawyers to bring out the facts of the case. . . . And anything that they don’t cover, either intentionally or by inadvertence, that’s their decision. [¶] . . . [¶] . . . [Y]ou have [heard] all the evidence, and that’s all the evidence you’re going to get.” After a discussion with counsel, the trial court instructed the jury to continue their deliberations.
Later that day, the jury sent the following communication to the trial court: “Despite continued deliberations, we have not been able to come to a unanimous decision on two of the three counts.” After questioning the jurors and discussing the matter with counsel, the trial court decided to “publish the verdict” on the count decided by the jury and declare a mistrial as to the remaining two counts. The court clerk then read the verdict finding Walker not guilty of evading an officer in violation of Vehicle Code section 2800.1. The trial court declared a mistrial with regard to the charges of possession for sale of cocaine base and possession of a firearm by a felon.
At proceedings held on December 7, 2006, Walker agreed to plead no contest to possession for sale of cocaine base. In exchange for his plea, he was to be sentenced to the low term of three years in prison. However, sentencing was to be delayed so that Walker could serve the remainder of his sentence in county jail. After waiving his right to a trial, to confront and cross-examine the witnesses against him, his right to present a defense and his privilege against self-incrimination, Walker pleaded no contest to count one, “a violation of Health and Safety Code section 11351.5, a felony, commonly known as possession for sale of cocaine base.” Sentencing was set for April 2007.
At proceedings held on April 23, 2007, it was determined that Walker needed to serve 104 more days to complete his term. Sentencing was, accordingly, set for August 6, 2007.
On August 6, the parties stipulated that Walker had actually served 731 days in custody and was entitled to 365 days of good time/work time, for a total of 1,096 days. The trial court determined that Walker had “complete[d] his three-year state prison term.” The trial court then sentenced Walker to three years in state prison, with credit for time served. The charge of possession of a firearm by a felon and all remaining allegations were dismissed. Since no further time in custody was required, Walker was released from custody and directed to report to a parole officer within the following 48 hours.
On August 6, 2007, Walker filed a timely notice of appeal based upon the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5.
This court appointed counsel to represent Walker on appeal on November 19, 2007.
CONTENTIONS
After examination of the record, appointed appellate counsel filed in this court an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed January 23, 2008, the clerk of this court advised Walker to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
APPELLATE REVIEW
We have examined the entire record and are satisfied Walker’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.