Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Craig E. Robison, Judge. Super. Ct. No. 06HF1614.
Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
After the trial court denied defendant Jesus Menchaca’s motion to suppress evidence, he pleaded guilty to possessing cocaine and having a prior felony conviction. Defendant then moved to dismiss his prior conviction. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court denied the motion and sentenced defendant to a total of 32 months in prison, consisting of double the low term of 16 months. Defendant appeals; his lawyer found no issues on which to base an appeal. We reviewed the record, find no error, and affirm.
FACTS
At the suppression hearing, police officer Tom Goodbrand testified he saw three men standing next to a truck; one was urinating on the ground, in violation of an Irvine Municipal Code section. By the time Goodbrand parked his vehicle, the three men had reentered the truck and the motor was running. As Goodbrand approached the truck, he saw defendant in the driver’s seat and the other two men next to him, each with an open can of beer. At that point, he requested backup, which arrived shortly after. Goodbrand asked the three men to step out of the vehicle because he saw the three open beer cans inside the truck and needed to investigate and recover the evidence, as well as “possibly search for other evidence . . . .” They complied.
Goodbrand then asked for and received consent from defendant to conduct a pat-down search. Although two other officers were present, no weapons were drawn, defendant was not handcuffed, and he had not been arrested. During the search, Goodbrand found a usable quantity of what was later determined to be cocaine in defendant’s right front pocket.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed a brief summarizing the facts and proceedings below. He did not argue against defendant but advised the court he had not found any issues to present on defendant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) Pursuant to Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], counsel identified several possible, but not arguable, issues to aid us in our independent review of the record: (1) did the court err in denying defendant’s motion to suppress; (2) did the court correctly deny defendant’s motion to strike his prior conviction; (3) was defendant’s guilty plea constitutionally valid; (4) was the guilty plea supported by a sufficient basis; and (5) was he sentenced pursuant to his guilty plea.
The third and fourth issues are not cognizable on appeal because defendant did not secure a certificate of probable cause. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304, subd. (a)(1); People v. Panizzon (1996) 13 Cal.4th 68, 76 [certificate required to appeal validity of guilty plea].) And although no certificate of probable cause is required to assert a claim regarding a sentencing issue, the court properly sentenced defendant in accordance with his guilty plea. It also acted within its discretion in denying defendant’s motion to strike his prior conviction. (People v. Romero, supra, 13 Cal.4th at pp. 529-530.)
Regarding the denial of defendant’s suppression motion, the court determined defendant had an open beer can in his possession, the car was “running and all three occupants [were] seemingly consuming beer. One of them just got out and relieved himself on the side of the vehicle. And good police work . . . would dictate that you stop and investigate and make sure you don’t have somebody who is going to get behind the wheel and drive away and plow into some pedestrians or another vehicle or injure any of its occupants or himself.” The court further found defendant had violated a Municipal Code prohibiting the consumption of alcohol in public, which did not require visible posting as argued by defendant. In our independent judgment we conclude on the facts found by the court the search was reasonable under the Fourth Amendment. (See People v. Hester (2004) 119 Cal.App.4th 376, 385.)
We granted defendant permission 30 days to file written argument on his own behalf. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., ARONSON, J.