Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FF408958, FF409284, FF615447
Bamattre-Manoukian, ACTING P.J.
Defendant John Howland was charged by first amended information FF409284 (consolidated with FF615447) with two counts of possession for sale of methamphetamine (Health & Saf. Code, § 11378; counts 1 and 3), and one count each of possession of methamphetamine (§ 11377, subd. (a); count 2), possession for sale of marijuana (§ 11359; count 4), possession of nunchaku (Pen. Code, § 12020, subd. (a)(1); count 5), being under the influence of methamphetamine (§ 11550, subd. (a); count 6, a misdemeanor), and possession of drug paraphernalia (§ 11364; count 8, a misdemeanor). The information further alleged that defendant was out of custody on bail at the time of the offenses in counts 1 through 3 (Pen. Code, § 12022.1), and that he had two prior strikes (Pen. Code, § 1170.12).
Further unspecified statutory references are to the Health and Safety Code.
The information also included allegations in counts 1-4 & 7 against Steven George Quinones, who is not a party to this appeal. Although defendant was separately charged by felony complaint No. FF408958 with possession of a controlled substance and possession of drug paraphernalia, those charges were dismissed on January 19, 2006.
On April 4, 2006, defendant filed a motion to dismiss on the grounds that he had been committed by the magistrate without reasonable or probable cause (Pen. Code, § 995). Defendant contended that the record of the preliminary hearing established a violation of his Fourth Amendment rights so that the contraband seized on December 20, 2004, should be suppressed. (Pen. Code, § 1538.5.) On September 12, 2006, the prosecutor filed opposition to the motion, arguing that the magistrate properly denied defendant’s motion to suppress at the preliminary hearing. Defendant’s motion to dismiss was heard and denied on September 19, 2006, based on the testimony at the preliminary hearing and photographs submitted by the prosecution. The testimony at the preliminary hearing, held December 9, 2005, and January 19 and February 3, 2006, was as follows.
Defendant waived preliminary hearing as to counts 3-5 & 8, offenses that were alleged to have occurred on April 14, 2006.
On December 20, 2004, at approximately 8:15 p.m., three officers went to a Morgan Hill trailer home in order to serve a felony drug possession arrest warrant on defendant. The officers knocked on the front door of the trailer home and announced their presence. Although they heard creaking inside the trailer, as if somebody was moving around inside, nobody responded to their repeated knocking for about two minutes. When the door started to open, one of the officers pushed it open and saw defendant standing on the other side of the door. Because the door swung inward, defendant stepped backward. The officer took two or three steps inside the trailer and told defendant that he was under arrest pursuant to a warrant and to turn around and put his hands behind his back. The officer was concerned that there might be other persons inside the trailer who might destroy evidence or acquire weapons, so he looked to his right after he handcuffed defendant. He saw Steven Quinones sitting at the kitchen table. On top of the table were narcotics and a large hunting knife partially covered by some type of rag. The officer drew his weapon, pointed it at Quinones and told him not to move. Quinones complied with the order. Another officer entered the kitchen and detained Quinones. The officers then did a protective sweep of the rest of the trailer home.
Later that night, after being booked at the police station, defendant signed a form consenting to the search of the trailer home. Officers from the unified narcotic enforcement team then searched the trailer home and found three separate baggies containing crystal methamphetamine on the kitchen table. One baggie had a gross weight of 51 grams, the second baggie had a gross weight of 7.64 grams, and the third baggie had a gross weight of 32 grams. A mirror with approximately .25 grams of methamphetamine, a glass pipe, a cutting agent, baggies, marijuana, a pay-owe sheet, a manual scale, and a police scanner were also found in the kitchen and in defendant’s bedroom. A test of a blood sample taken from defendant on December 20, 2004, revealed methamphetamine and amphetamine in defendant’s blood.
On October 20, 2006, the prosecutor dismissed count 2 and reduced count 5 to a misdemeanor. Defendant pleaded guilty to counts 1, 3 through 6, and 8, and admitted the on-bail and the two prior strike allegations. Defendant subsequently filed a request that the court dismiss his prior strikes under Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and the prosecutor filed opposition to the request. At the sentencing hearing on March 23, 2007, the court heard testimony from defendant and his former girlfriend and argument by both parties. The court granted the Romero motion in part, struck one of the strikes, and sentenced defendant to seven years, four months in state prison on the three felony counts, and 90 days in county jail on the three misdemeanor counts with 90 days credit for time served.
Defendant filed a timely notice of appeal and we appointed counsel to represent him in this court. Appointed counsel has filed a brief that states the case and facts but raises no issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no response from defendant. Pursuant to People v. Wende (1979) 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
The judgment is affirmed.
WE CONCUR: MIHARA, J., DUFFY, J.