Opinion
H030653
5-21-2007
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR RAY GREEN, Defendant and Appellant.
NOT TO BE PUBLISHED
On May 11, 2005, defendant Arthur Ray Green pled nolo contendere to possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and admitted he had one strike prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and two prior drug convictions (Health & Saf. Code, §§ 11370.2, 11370, subds. (a), (c)). In exchange, the prosecution agreed he would receive a six-year prison term with the understanding that if defendants Romero motion seeking dismissal of the strike prior was granted, defendant would receive three years. The court agreed that defendant would remain out of custody on the bail already posted until the sentencing date of June 30, 2005, but if he failed to appear or committed new criminal offenses during the interim, the court would not be bound by the plea agreement, defendant would not be allowed to withdraw his plea, and he could be sent to prison for the maximum term available for his offenses and priors, 16 years. Defendant agreed pursuant to People v. Cruz (1988) 44 Cal.3d 1247.
Defendant failed to appear for hearing on the Romero motion and a bench warrant was issued. Almost a year later, defendant was picked up in San Francisco on a violation of Health and Safety Code section 11352. When defendant appeared for the Romero motion and sentencing, the court denied the motion, however, it struck the additional punishment for the section 11370.2 drug priors. It sentenced defendant to six years in state prison based on the doubled three-year term because of the strike prior. The court also recommended that defendant not be housed or processed at San Quentin but that he be processed at the North Kern Reception Center. Defendant filed an in propria persona request to recall the sentence pursuant to Penal Code section 1170, subdivision (d), which was denied.
This appeal ensued. We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument on his own behalf and have received a "letter of argument" from defendant.
Defendant raised three points: (1) counsel failed to represent him by failing to file a motion challenging his search and seizure on the ground that on September 3, 2004, when he was stopped by Mountain View police officers for a traffic violation, he was not on probation or parole and the smell of alcohol did not warrant a search of his person. (2) The Santa Clara County District Attorney abused his discretion when he charged defendant with a violation of Health and Safety Code section 11351.5 because defendant "had valid verification [(a bank statement)] where the $644 in cash came from `a bank statement. Defendant also argue[d] that the `pay owe sheet found was used to keep track of money loan[ed] because [defendants] memory isnt to[o] good, defendant falls under the `American Disability Act. " (3) Defendant contends that charging him with a second strike under Penal Code sections 667, subdivision (b), and 1170.12 "doesnt fall under the voters[] Pen. [Code section] 1192.2 provisions for strikable offenses (1994)." Defendant concludes he should have received only three years "not 6 yrs. 80%."
In response to our invitation to appellate counsel to review defendants letter, counsel states his earlier conclusions about the case are unaltered.
FACTS
The statement of facts is taken from the probation report. On September 3, 2004, around 11:30 p.m., Mountain View police officers saw defendant riding his bicycle without a headlight. When the officers contacted defendant he had a smell of alcohol on his breath and person and was wearing a heavy black jacket on a warm night. He told the officers he was trying to get to San Mateo and did not know where he was. He had no identification. When policed searched defendant, they found baggies of marijuana in his pockets, 11.6 grams of cocaine in his pants legs, and a "pay-owe" sheet in his jacket and $644 in cash.
When defendant was returned to court for sentencing after his failure to appear, defense counsel noted that defendant, then 47, had only one prior violent felony conviction which was for a robbery in 1978 when he was 19 years old. Counsel explained defendant failed to appear for sentencing because "he was scared. He made a mistake and shouldnt have done it." Defendant had "illnesses and some other issues that . . . instill fear into him going into custody. . . . He made a bad choice and apologizes to the Court for that choice."
The sentencing court stated that when the case initially came up, it was "really inclined to grant the Romero. It was impressive to me that the defendant has had no known law violations for the past 15 years, and I was really going to grant that Romero. I mean, I think he was outside the spirit of the law at that time of the Romero. I think the thing that, unfortunately for him, puts him back in, frankly, is not so much his flight, but the fact that he picked up new charges when he was out, when he was at large." In addition, defendant had agreed to a Cruz waiver "so it was pretty apparent that . . . there was going to be a little heavier penalty extracted if you didnt show up for your sentencing. . . . [N]ormally someone whos facing a strike charge isnt allowed to be at liberty pending that sentencing."
DISCUSSION
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have reviewed the record and concur with appellate counsels assessment of the case. In compliance with Kelly, supra, 40 Cal.4th at page 119, we have reviewed the clerks transcript containing the complaint to which defendant pled nolo contendere and admitted the enhancements, the Romero motion, the probation report, the abstract of judgment; the reporters change of plea transcript dated May 11, 2005; and the reporters sentencing transcript dated April 28, 2006.
The court properly advised defendant of his trial and appeal rights, the consequences of the plea, including the bargained-for sentence, and the maximum sentence available if defendant did not abide by the Cruz waiver. When defendant was brought to court for sentencing, the court heard the Romero motion and exercised its discretion by carefully weighing the Romero factors including the circumstances of the past and current offenses, defendants background, character, and prospects, and the fact that defendant picked up new charges between changing his plea and the date of sentencing. The court reasonably exercised its discretion both in denying the motion and sentencing defendant. The court showed leniency in imposing the doubled mitigated term rather than the doubled midterm requested by the prosecutor and by striking the additional penalty for the drug priors.
Defendants only arguable complaint is that his trial counsel was incompetent in failing to challenge what he characterizes as an "illegal search and seizure." To prevail on a claim of ineffective assistance of counsel, a defendant must show not only (1) that counsels performance fell below an objective standard of reasonableness under prevailing professional norms, but also (2) that, as a result, the defendant was prejudiced, i.e., there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
In the instant case, the officers properly detained defendant to investigate a violation of Vehicle Code section 21201, operating a bicycle without a headlamp. Upon contacting defendant, the officers smelled alcohol which gave them a reasonable suspicion that defendant could be operating a bicycle under the influence of alcohol. (Veh. Code, § 21200.5.) The officers properly investigated that suspicion and learned that defendant did not know where he was and did not have identification. The officers had probable cause to arrest defendant for operating a bicycle without a headlight and under the influence of alcohol. A custodial search, even for a very minor offense, does not violate the Fourth Amendment to the United States Constitution if the arrest is supported by probable cause. (Atwater v. Lago Vista (2001) 532 U.S. 318, 354; People v. McKay (2002) 27 Cal.4th 601, 607-618.) Thus the arrest, and search incident to arrest, was within constitutional boundaries and it is not reasonably likely that the outcome would have been more favorable to defendant had counsel filed a motion to suppress.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Rushing, P.J.
Elia, J. --------------- Notes: People v. Superior Court (Romero) (1996) 13 Cal.4th 497.