Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA096449, Paul A. Bacigalupo and Jerry E. Johnson, Judges.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, Acting P.J.
Carl Bee appeals from the judgment entered following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, his no contest plea to possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and his admission that during the commission of the offense he was personally armed with a firearm within the meaning of Penal Code section 12022, subdivision (c). Pursuant to his negotiated plea, he was sentenced to prison for the middle term of four years plus four years for the gun use enhancement and a count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and a gang allegation pursuant to Penal Code section 186.22, subdivision (b)(1)(A) were dismissed.
The evidence at the suppression hearing established that on March 8, 2008, at approximately 10:00 p.m., Los Angeles Police Officer Roger Fontes was on patrol in a marked police vehicle with his partner Officer Skett in the vicinity of 381 West 89th Street in Los Angeles. Officer Fontes observed appellant was in the company of more than 10 other people, who all appeared to be drinking alcoholic beverages. Officer Fontes recognized the group of people as members of the Hoover Street gang. As the officers approached in their vehicle, Officer Fontes saw appellant notice them, turn from them, and run up the stairway leading to apartment number 5. Officer Fontes illuminated appellant with his flashlight and formed the opinion appellant was trying to avoid police contact. The officers exited their vehicle, ordered appellant to stop, and followed him up the stairs, illuminating appellant and the area around him. While appellant was opening the door to his apartment, he dropped a clear plastic package containing off-white solids, resembling rock cocaine. Officer Fontes recovered the package and he and Officer Skett handcuffed appellant. The door to appellant’s apartment was open and Officer Fontes observed a “chair that was near the door with a plate that had additional off-white solids resembling rock cocaine” and a revolver near the plate. The rock cocaine and the gun were approximately four or five feet from the door and appellant was standing at the open door at that point. The gun was determined to be loaded.
Appellant testified he was returning home from work and observed a group of people standing around his door. He recognized some of them as local gang members and walked upstairs. Officers then “c[a]me behind [him] throwing guns behind [him asking why he was] running.” Appellant was not running or drinking but was only trying to get to his apartment. Officers ordered him back downstairs and he was handcuffed. His keys were taken from him and an officer opened appellant’s apartment door. There was no chair by the door, no cocaine, and no gun in the apartment.
In denying the suppression motion, the court observed the prosecution had sustained its burden of proof that no constitutional violation had occurred. The prosecution had presented credible evidence that the officer saw appellant apparently drinking in public, appellant, thereafter, dropped what appeared to be contraband, appellant’s door was open, and the contraband and firearm were in plain view.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On July 29, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, 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.)
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.