Opinion
H043787
05-30-2017
THE PEOPLE, Plaintiff and Respondent, v. MARIUS ALEXANDER DUNN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F28795)
Defendant Marius Alexander Dunn pleaded guilty to felony possession of marijuana for sale (Health & Saf. Code, § 11359). Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d. 436 (Wende) on behalf of defendant. Defendant was notified of his right to submit written argument on his own behalf, but he has failed to avail himself of the opportunity. We affirm the judgment.
I. Factual and Procedural Background
At approximately 4:30 p.m. on July 24, 2015, Deputy Nicholas Solano responded to a dispatch call of a suspicious person in the bushes at the entrance ramp of southbound Highway 17 near the Pasatiempo Golf Course. Dispatch advised that there was a concern that the person was starting a fire. When Deputy Solano arrived at that location, Deputy Spencer was calling to the individual, who fit the physical description provided by dispatch. The individual, later identified as defendant, came out from behind a fence and was walking along the side of the highway.
Defendant, who was dirty and sweating and had thistles in his hair, dropped a piece of aluminum foil with black streaks. Deputy Solano recognized that the burnt foil was drug paraphernalia. Defendant spoke very rapidly and could not sit still while Deputy Solano spoke to him. Defendant's pupils were large for the lighting conditions. Deputy Solano detained defendant based on his erratic behavior and possession of drug paraphernalia. In response to questioning, defendant stated that he had used methamphetamine a few days earlier. Based on defendant's behavior and his visible symptoms, the deputy performed a drug influence field evaluation. During the evaluation, defendant told the officer that he had injected methamphetamine earlier that day. Based on his training and experience, Deputy Solano opined that defendant was under the influence of a controlled substance, most likely methamphetamine, and arrested him.
After defendant was handcuffed and placed in Deputy Solano's patrol car, defendant told him that his friend, later identified as Forrest Macierez, had driven him to this location. Macierez was waiting for him in defendant's vehicle, which was parked up the street. Defendant also stated that Macierez was a heroin addict.
Deputy Solano went to defendant's vehicle to ensure that Macierez was capable of driving defendant's vehicle safely. When the officer walked up to the vehicle, all the side windows were down. The officer could smell the odor of burnt marijuana emanating from defendant's vehicle. He also noticed the handle of a hammer between the driver's seat and the center console. After Macierez stepped out of the vehicle, the officer saw a glass pipe and loose marijuana.
Deputies Solano and Spencer searched the vehicle and found indicia of drug sales. There was a backpack on the rear driver's side seat containing a digital sale and various controlled substances, including four plastic bundles of marijuana which each weighed approximately 30 grams. They also found a green waxy substance which weighed 106 grams. Narcotics were also found in the trunk.
After acknowledging his Miranda rights, defendant stated that he had been shooting methamphetamine earlier that day. Defendant also stated that he was a marijuana broker. Defendant showed Deputy Solano a couple of text messages on his cell phone in which he was asked for his location and if marijuana could be purchased. Defendant explained that the substance in the wax paper was bubble hash, which is a type of concentrated cannabis. There were tablets and cell phones in the vehicle, which had been given to defendant in exchange for marijuana. Defendant did not know if these items were stolen, but he suspected that they were. Defendant also claimed that the psilocybin mushrooms found in the trunk of his vehicle were for personal use. Deputy Solano tested one of the substances found in the vehicle. The result was presumptive positive for methamphetamine. The plastic bag containing the psilocybin was about the size of a backpack.
Following the preliminary hearing in November 2015, defendant was charged with felony possession of marijuana for sale (Health & Saf. Code, § 11359 - count 1), misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377 - count 2), and misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a) - count 3).
In April 2016, defendant filed a motion to suppress evidence. In June 2016, the trial court denied the motion.
In July 2016, the trial court held a hearing in which it advised defendant of his rights to a jury trial, to cross-examine witnesses, to present defense evidence, to use the court's subpoena power, and to remain silent. Defendant stated that he understood his rights and waived them. The trial court also advised defendant of potential immigration consequences and the maximum penalty for the charge. In response to questioning from the trial court, defendant indicated that he had not consumed any substance that affected his ability to understand the proceedings, that no one had threatened him, and that he did not need additional time to discuss his case with his attorney. Pursuant to the plea agreement, defendant pleaded guilty to possession of marijuana for sale and the remaining counts were dismissed. The preliminary hearing transcript served as a factual basis for the plea.
At the same hearing, the trial court suspended imposition of sentence, placed defendant on probation for three years, and ordered him to serve 75 days in jail. The plea agreement also required defendant to forfeit seized property. Other probation conditions included a stay away order from an address in Santa Cruz and a requirement to comply with an existing protective order.
Defendant filed a timely notice of appeal based on the denial of the motion to suppress evidence.
Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.
II. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).