Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. BAF004903. Gordon R. Burkhart, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
Defendant and appellant Donald Curtis Jones appeals after he pleaded guilty to two counts of possession of a controlled substance (Health & Saf. Code, § 11377), and one count of intent to produce a controlled substance (Health & Saf. Code, § 11390). His appellate counsel has filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493, 87 S.Ct. 1396] (Anders), and People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no specific issues on appeal. Defendant has personally filed a supplemental brief arguing that the court erred in denying his motion to suppress evidence. We have reviewed the record in its entirety and considered all the suggested avenues of inquiry. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
In June 2006, Sergeant Ohannessian was a member of a regional drug task force in San Bernardino County. Sergeant Ohannessian had received information from the Drug Enforcement Administration (DEA) that defendant had purchased on the internet some items that are commonly associated with methamphetamine manufacture (a Pyrex flask and several pounds of iodine crystals). Sergeant Ohannessian had obtained the name of the purchaser (defendant) and address to which the materials were mailed. Sergeant Ohannessian and his partner went to the address, which turned out to be a mobilehome with a detached garage. The vehicle parked in the driveway was registered to defendant.
The side door of the garage was open as the officers approached. Sergeant Ohannessian saw a box on a shelf, labeled “‘muriatic acid.’” He saw some half-gallon jars containing layered liquids. He also smelled “a pungent chemical smell” emanating from the garage. These factors together were consistent with Sergeant Ohannessian’s experience of methamphetamine laboratory operations.
While Sergeant Ohannessian’s partner knocked at the door of the mobilehome, Sergeant Ohannessian saw defendant come to the window and look out. The officers identified themselves, but defendant ran away. Sergeant Ohannessian ordered his partner to breach the door. Sergeant Ohannessian had formed the opinion that a methamphetamine manufacturing operation was ongoing, and feared that defendant might be destroying evidence before the officers could send for a warrant.
The officers broke down the door, entered, and arrested defendant. During a sweep of the residence, Sergeant Ohannessian observed some containers with tubing coming out of them, some iodine, some red phosphorus, a small amount of white substance consistent with methamphetamine, and what appeared to be a mushroom cultivation operation. The officer secured the scene and waited for the arrival of a search warrant.
As a result of what police discovered at the residence and garage, defendant was charged with one count of possession of psilocybin mushrooms, a controlled substance, one count of intent to produce a controlled substance (based on the cultivation of the mushrooms), and one count of possession of methamphetamine. Initially, defendant pleaded not guilty to all counts.
Defendant moved to suppress evidence, based on the warrantless entry and search of the mobilehome residence. Defendant argued that the officers knew nothing of any unlawful conduct connected with defendant or the residence. The only circumstances known at the time of entry were that defendant had purchased glassware and iodine crystals, and someone was moving about inside the residence. Thus, there was no exigency, or any exigency was entirely created by the officers themselves. The trial court denied defendant’s motion to suppress evidence.
Thereafter, defendant changed his plea. He agreed to plead guilty to all counts, in exchange for a grant of probation, including service of jail time on weekends.
Because the appeal arises after a plea of guilty, the issues are limited to the propriety of the trial court’s ruling on the motion to suppress, and any issues concerning the sentence or arising after the plea.
ANALYSIS
I. Standard of Review
On review of an appeal upon the filing of an appellate brief pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, the reviewing court must conduct an independent review of the entire record to determine whether there are any arguable issues. Appointed appellate counsel did not identify any particular areas of inquiry. Defendant personally filed a supplemental brief, however, suggesting that the trial court erred in its determination of the motion to suppress evidence.
II. The Court Properly Denied the Motion to Suppress
Defendant urges that the warrantless search was unlawful because it was supported only by mistaken or fabricated probable cause. In support of this argument, he disputes the deputies’ evidence of a chemical smell emanating from the garage. Defendant argues that no methamphetamine manufacturing was ongoing, and otherwise the chemicals or substances found inside the garage were so minuscule that no odor could have been detected. Defendant himself smelled no odor, and one of the other officers present indicated that he did not smell anything. This amounts simply to defendant’s refusal to accept the trial court’s resolution of credibility issues in the process of finding the historical facts. He has selected the evidence in his own favor, to the exclusion of the evidence in favor of the trial court’s ruling. A party must fairly set forth the evidence and the failure to do so will result in a waiver of all evidentiary claims. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) “In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. . . . [Citation.]” (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) Here, the trial court’s factual findings were supported by substantial evidence.
Defendant contends there were no exigent circumstances to justify the entry, as the only “exigency” was in effect created by the officers themselves. Multiple officers appeared outside defendant’s residence in “raid” jackets. Defendant argues he reasonably feared for his life, and that was why he did not come to the door. Nevertheless, the officers were properly in a position to view defendant through the window. They had seen and smelled evidence to suggest ongoing illegal drug activity. Defendant withdrew from the window when he saw officers and ran around inside the mobilehome. These circumstances indicated a reasonable likelihood that defendant might be destroying evidence inside the residence; that exigency justified the warrantless entry. (In re Elizabeth G. (2001) 88 Cal.App.4th 496, 506-507.)
Defendant complains that the trial court was biased, because the court undertook to examine the testifying witness at the hearing; we have reviewed the record of the court’s examination of the witness. We discern no bias, but only a conscientious trier of fact attempting to ascertain the relevant facts.
Defendant argues his trial counsel was incompetent at the motion hearing, for “refusing to present my view of the events or give justification for my actions, while allowing the prosecution and the judge . . . to enter untrue statements and [leave] false assumptions unchallenged.” To the contrary, however, defense trial counsel vigorously examined the witness, and presented detailed arguments in the written papers. Defendant has failed to show either that his trial counsel’s performance fell below an objective standard of competence, or that he was prejudiced by counsel’s alleged failures. (Strickland v. Washington (1984) 466 U.S. 668, 686, [104 S.Ct. 2052, 80 L.Ed.2d 674].)
DISPOSITION
We have undertaken an independent review of the entire record as required under Wende and Anders. No arguable ground of appeal appears. The judgment is affirmed.
We concur: Richli, J., King, J.