Opinion
H044672
02-09-2018
THE PEOPLE, Plaintiff and Respondent, v. JAVIER JAURIGUE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. CR-15-02163)
Following the denial of a motion to suppress evidence seized following an allegedly unlawful detention, defendant Javier Jaurigue pleaded no contest to possession for sale of methamphetamine in violation of Health and Safety Code section 11378. The court sentenced defendant to a prison term of four years, as called for by his plea bargain.
On appeal, defendant's counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. Counsel concurrently filed a petition for writ of habeas corpus in In re Javier Jaurigue (H045201) raising claims of ineffective assistance of counsel, which we resolve by separate order. We notified defendant of his right to submit a written argument on his own behalf on appeal. He responded that he did not wish to file a supplemental brief and that he is satisfied with the writ petition filed on his behalf.
Based on our independent review of the record, we conclude that there are no arguable issues on appeal. As required by People v. Kelly (2006) 40 Cal.4th 106, 110, we will provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." We will further include information about aspects of the trial court proceedings that might become relevant in future proceedings. (Ibid.) I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the transcript of the hearing on defendant's motion to suppress and the police report.
San Benito County Sheriff's Deputy Cody Diller testified that on the night of December 10, 2015, he was in his parked patrol car at the top of a frontage road behind Park Hill in Hollister. At about 10:03 pm, Diller saw defendant pacing back and forth on the dark frontage road for several minutes. Diller considered defendant's behavior to be suspicious because the frontage road is clearly marked "for authorized vehicles only," it was late at night, defendant was wearing all dark clothing and did not appear to have a reason to be there, and the area is known for drug and gang activity. Defendant moved from the City-owned frontage road to a trail located on private property belonging to the Brigantino family. The Brigantinos had authorized the Sheriff's Office to enforce laws prohibiting trespassing on their property as part of an effort by the Sheriff's Office to remove a large homeless population from the property.
Defendant went 15 or 20 yards up the trail and onto the Brigantinos' property, at which point Diller lost sight of him. Diller drove down the hill and exited his patrol vehicle. Defendant came down the trail and walked away from Diller. Diller contacted defendant at the intersection of Locust and the frontage road. Diller testified that he detained defendant because he had trespassed on private property, although Diller acknowledged that he did not mention trespassing in his police report.
Defendant was wearing baggy clothing. Diller observed large bulges in defendant's jacket pockets. For purposes of officer safety, Diller conducted a pat search, during which he felt what he believed to be a syringe in defendant's jacket pocket. Defendant grew nervous and fidgety. When a second deputy arrived, Diller handcuffed defendant and searched him, finding a syringe, three baggies of what appeared to be methamphetamine, and three cell phones. Defendant was arrested for possession of a controlled substance for sale.
The San Benito County District Attorney charged defendant with felony possession for sale of a controlled substance (Health & Saf. Code, § 11378; count 1) and misdemeanor possession of an injection device (Health & Saf. Code, § 11364, subd. (a); count 2). As to count 1, the complaint (later deemed to be the information) alleged that defendant had suffered two prior strike convictions (Pen. Code, § 667, subds. (b)-(i)) and served one prior prison term (§ 667.5, subd. (b)).
All further statutory citations are to the Penal Code unless otherwise indicated. --------
Defendant filed a motion to suppress the drug evidence seized on the ground that he was detained unconstitutionally. The trial court denied that motion after a hearing.
On October 5, 2016, defendant pleaded no contest to count 1, possession for sale of methamphetamine, and admitted the prior prison commitment (§ 667.5, subd. (b)) in exchange for the striking of the strike priors and the dismissal of count 2, and charges against him in a separate case. The parties agreed that the police report provided a factual basis for the plea.
On November 17, 2016, the trial court sentenced defendant to the upper term of three years plus one year for the prior prison term, for a total prison term of four years, as called for by the plea bargain. The court calculated that defendant had 148 custody credits. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)) with an additional $300 parole revocation fine, which was suspended pending successful completion of parole (§ 1202.45); a $40 court security fee (§ 1465.8); and a $30 criminal conviction assessment fee (Gov. Code, § 70373).
The superior court received defendant's untimely notice of appeal on February 15, 2017. On June 7, 2017, this court granted defendant's motion for relief of default provided he filed a notice of appeal within 10 days. Defendant complied, filing a notice of appeal from the sentence or other matters occurring after the plea and from the denial of the motion to suppress.
II. DISCUSSION
Having examined the entire record, we conclude that there are no arguable issues on appeal.
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, Acting P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.