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People v. Herrera

California Court of Appeals, Second District, Fifth Division
Aug 2, 2023
No. B325343 (Cal. Ct. App. Aug. 2, 2023)

Opinion

B325343

08-02-2023

THE PEOPLE, Plaintiff and Respondent, v. MOISES ABRAHAM HERRERA, Defendant and Appellant.

Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of the County of Los Angeles, No. MA078262 Kathleen Blanchard, Judge. Affirmed.

Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

KIM, J.

I. FACTUAL BACKGROUND

A. Prosecution's Case

1. February 3, 2020, Offense

On February 3, 2020, at approximately 8:40 p.m., Los Angeles County Sheriff's Deputy Nicholas Dyer and his partner were in the area of 8314 Pearblossom Highway in Littlerock, when Deputy Dyer noticed a black Honda Civic in violation of several Vehicle Code violations. He then observed the Civic make an abrupt turn into a gas station parking lot.

As the Civic pulled up to a gas pump, Deputy Dyer saw the driver, defendant, reach into the center console area. Defendant was the sole occupant of the Civic. As Deputy Dyer pulled up next to the Civic, defendant attempted to exit his car quickly. The deputies told defendant to stop moving and stay inside of his car, and defendant complied. Deputy Dyer heard his partner ask defendant if he had anything illegal on him or in the car, and the defendant answered, '''No, you can look.'"

Deputy Dyer then searched the center console area of the car, where he noticed that the plastic section between the center console and the cup holders was unhinged. The deputy lifted the loose plastic section and observed a plastic baggie containing a large crystal substance resembling methamphetamine. He recovered the plastic baggie and later booked the substance into evidence. He also recovered a gold colored cell phone in the driver door pocket and $730 in various denominations from defendant's back pocket. When asked whether the plastic baggie and the phone belonged to him, defendant said, "'No.'" He also stated that he did not use methamphetamine anymore and claimed that no one else drove the Civic, explaining, "'It's just a spare car I use now and then.'" The substance was later tested and determined to be 10.56 grams of methamphetamine.

2. February 13, 2020, Offenses

On February 13, 2020, Deputy Jared Fletcher was assigned to the parole compliance team. That morning around 8:00 a.m., he and eight other deputies participated in a search at a property on 82nd Street in East Littlerock.

Deputy Fletcher searched a garage on the property and found .22 caliber ammunition and a box of handgun ammunition. In an adjacent structure that had been converted to living quarters, he observed a bed and other furniture. On a table in the middle of that room, he saw a small digital scale with "flecks" that appeared to be narcotics. Next to the scale, there were also "small plastic baggies . . . commonly used to package narcotics for sale ...." Inside a backpack on the floor next to the bed, the deputy found three firearms, ammunition, narcotics, and "paperwork." The three firearms were operable, loaded semiautomatic-handguns. In a dresser at the foot of the bed, the deputy located a clear plastic baggie containing a substance resembling methamphetamine and paperwork with defendant's name on it. Testing confirmed that the substance was 21.1 grams of methamphetamine.

Defendant was present during the search and admitted that the living quarters belonged to him and no one else had access to it. According to defendant, he had not been in the room recently and had no knowledge about the handguns, ammunition, and narcotics that the deputy located.

3. July 28, 2021, Offenses

On July 28, 2021, Deputy Christopher Horsley was on patrol with his partner in the area of 82nd Street and Pearblossom Highway in Littlerock. He observed defendant operating a motorcycle without a helmet. Defendant pulled into a bank parking lot next to a red SUV. He appeared to hand something small through the passenger window to the driver of the SUV. During a search of the SUV, the deputy found in the center console a small plastic bag containing a substance that looked like methamphetamine and a glass bulbous pipe with a burnt end. The deputy's partner searched defendant and found a $20 bill in one of his pockets. Later tests established that the substance was 1.77 grams of methamphetamine.

B. Defense Case

Defendant's wife, Breeanna Herrera, lived with him and their three children in the main house on the property located on 82nd Street. His mother and brother Isias also lived in the house with them. In addition, defendant's brothers Angel and Fidel lived in trailers behind the garage and a trucker named Robert lived in the converted living quarters attached to the garage. After the deputies searched the garage and left the scene, Breeanna noticed that the padlock to the door of the garage had been cut and was on the ground.

II. PROCEDURAL BACKGROUND

In an amended information, the Los Angeles County District Attorney charged defendant, in counts 1, 8, and 9, with possessing (on February 3, 2020, February 13, 2020, and July 28, 2021, respectively) methamphetamine for sale in violation of Health and Safety Code section 11378; in count 2, with possessing (on February 13, 2020) a controlled substance with a handgun in violation of Health and Safety Code section 11370; in counts 3, 4, 5, and 6, with possessing (on February 13, 2020) a firearm as a felon with priors in violation of Penal Code section 29800, subdivision (a)(1); in count 7, with unlawfully possessing (on February 13, 2020) ammunition as prohibited by a prior conviction in violation of Penal Code section 30305, subdivision (a)(1); and in count 10, with selling, offering to sell, or transporting (on July 28, 2021) a controlled substance in violation of Health and Safety Code section 11379, subdivision (a).

Prior to trial, the court dismissed count 3 on the prosecution's motion, and, following trial, the jury found defendant guilty on counts 1,2, and 4 through 7, but acquitted him on counts 8 through 10. The court sentenced defendant to a five-year term, comprised of a middle term three-year sentence on count 2, plus consecutive one-third the middle term sentences of 8 months on counts 1, 4, and 5. Pursuant to Penal Code section 654, the court stayed the sentences on counts 6 and 7.

We appointed counsel to represent defendant on appeal. On March 29, 2023, counsel filed an opening brief that did not identify any arguable issues and requested that we follow the procedure set forth in People v. Wende (1979) 25 Cal.3d 436, 441 (Wende). That same day, we notified defendant that his appointed appellate counsel had failed to find any arguable issues and that he had 30 days within which to independently brief any grounds for appeal, contentions, or arguments he wanted us to consider. Defendant did not file a supplemental brief.

III. DISCUSSION

We have independently reviewed the record and are satisfied that defendant's appointed counsel has fully complied with his responsibilities in the instant appeal and that no arguable issues exist. (Wende, supra, 25 Cal.3d at p. 441.)

IV. DISPOSITION

The judgment is affirmed.

We concur: BAKER, Acting P. J. MOOR, J.


Summaries of

People v. Herrera

California Court of Appeals, Second District, Fifth Division
Aug 2, 2023
No. B325343 (Cal. Ct. App. Aug. 2, 2023)
Case details for

People v. Herrera

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MOISES ABRAHAM HERRERA, Defendant…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Aug 2, 2023

Citations

No. B325343 (Cal. Ct. App. Aug. 2, 2023)