Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. VA098212, Richard M. Goul, Judge
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
COFFEE, J.
Appellant Edgar Javier Jimenez appeals from a judgment entered following his no contest plea to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) He admitted having suffered a prior conviction for which he served a prison term and did not remain free of prison custody for five years. (Pen. Code, § 667.5, subd. (b).) The trial court imposed the low term of 16 months and added one year for the prison prior, for a total term of 28 months in state prison. Appellant was granted 236 days custody credit.
On November 16, 2006, at approximately 4:00 a.m., two sheriff's deputies were on patrol. They saw appellant in the parking lot of the Brite Spot restaurant, where he stumbled, fell and caught himself by grabbing onto the hood of a car. One of the deputies approached appellant, determined that he was under the influence of alcohol and arrested him. The deputies discovered that appellant had two outstanding warrants and searched him. In appellant's right front pocket, they found four small baggies containing a white crystalline substance resembling methamphetamine.
Appellant offered testimony that, on the date of the offense, he was drinking at a bar with his sister, Elizabeth Jimenez, her boyfriend, Edgar Torres, and a friend, Javier. Appellant drank two beers, and part of a third beer. They left the bar at 2:00 a.m. and went to the Brite Spot to eat dinner, where they stayed for two hours. Appellant did not consume any alcohol.
Appellant, Elizabeth and Javier left the restaurant to get into the car and Torres remained inside the restaurant. Appellant was not falling down or stumbling and was not drunk. He stopped to ask a man standing nearby for a cigarette. As appellant was getting into the car, the deputies stopped him and searched his pockets. Elizabeth and Javier were asked to get out of the car. Torres came out of the restaurant and was detained, along with Elizabeth, Javier and Torres. They were searched and then released.
Appellant moved to suppress evidence of the substance found in his pocket. The motion was denied. Appellant entered his no contest plea and admitted the prior prison conviction.
We appointed counsel to represent appellant in this appeal. After reviewing the record, counsel filed an opening brief raising no issues and requesting this court to independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
On October 25, 2007, we advised appellant that he had 30 days in which to submit a written brief or letter stating any contentions or arguments he wished us to consider. We have received no response from him.
We have examined the entire record and are satisfied that appellant's attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
Prior to filing the opening brief, appellant's counsel filed with this court an ex parte motion to correct a miscalculation in appellant's presentence custody credits. She contends that appellant was entitled to 282 custody credits rather than the 236 credits granted by the trial court. Counsel requested that we order the trial court to amend the abstract of judgment to reflect the additional credits. We cannot grant her request because counsel must first file a motion for correction in the trial court raising the issue and requesting relief. (People v. Mendez (1999) 19 Cal.4th 1084, 1100; People v. Clavel (2002) 103 Cal.App.4th 516, 519.)
The judgment is affirmed.
We concur: GILBERT, P.J. PERREN, J.