Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C150830
Haerle, J.
I. INTRODUCTION
Appellant appeals from an order of the trial court revoking his probation and, pursuant to People v. Wende (1979) 25 Cal.3d 436, asks this court to examine the record on appeal and determine if there are any issues in the case that deserve further briefing. We have done so, find none, and hence affirm the trial court’s order revoking appellant’s probation.
II. FACTUAL AND PROCEDURAL BACKGROUND
In March 2005, appellant was charged with possession for sale of a controlled substance (Health & Saf. Code, § 11378) and, subsequently, pled no contest to the lesser charge of possession of a controlled substance, also a felony. (Health & Saf. Code, § 11377; hereafter section 11377.) The court suspended imposition of a prison sentence and ordered appellant placed on five years probation, with various conditions including jail time already served, fees, fines, and forfeiture of money in appellant’s possession at the time of his arrest.
Two years later, in February 2007, after another conviction under section 11377 and a negotiated disposition, appellant’s probation was revoked but then restored for a period of five years.
Early in the morning of June 19, 2010, appellant was driving a white Ford Explorer east on Ashby Avenue in Berkeley. Berkeley Police Officer McDougall saw his vehicle and noted that it was travelling too fast for that area. McDougall followed the Ford Explorer as it turned onto San Pablo Avenue and caught up with it as it neared 65th Street, where it made a U-turn. McDougall followed it into that turn, and then noticed that the Ford also did not have a functioning light on its rear license plate. McDougall thus initiated a traffic stop, and found appellant to be the driver of the car, and also to be “extremely nervous. His hands were shaking, and his speech was stammered and hesitant....”
All further dates noted are in 2010.
McDougall asked appellant to get out of the Ford, which he did. After appellant identified himself, the officer “did a records check via police radio and confirmed Owens was on probation with an S7 search clause.” Because of that search clause, McDougall searched both appellant and his Ford; he found nothing on appellant, but did find, between the two front seats of the Ford, a “baggie” which “contained a second baggie, which contained a large amount of a crystalline substance which I recognized as consistent with crystal methamphetamine.” In the same area, McDougall also found “a folded packet of papers” which turned out to be “several prescription drug slips in Owens name.”
After giving appellant a Miranda warning, the officer asked him about the baggie and its contents. Appellant “claimed he did not know where the drugs came from.”
Appellant was then taken to and booked into the Berkeley jail, and the methamphetamine weighed in at 8.2 grams. It also tested positive for amphetamines and methedrine.
Two days later, i.e., on June 21, a petition was filed to revoke appellant’s probation because of his arrest for alleged possession of methamphetamine under section 11377 and, three days later, his probation was summarily revoked.
On August 26, appellant appeared in superior court for a hearing on the June 21 petition. At that hearing, appellant’s counsel stipulated to the admission into evidence of the police report attached to the pending petition, and the proceedings were continued to September 2 and, later, to October 5.
On October 1, appellant filed a motion to remove the trial judge assigned to the probation revocation hearing, Judge Joseph Hurley, pursuant to Code of Civil Procedure section 170.6. On October 5, the court denied that motion as untimely. A second similar motion filed on October 12 was similarly denied.
On October 12, a hearing was held on the probation revocation petition. The only evidence presented by the prosecution was the Berkeley Police Department report which, as noted earlier, had been stipulated into evidence. For the defense, appellant testified as did a friend of his, one Kristin Anderson. The latter testified that the Ford Explorer appellant had been driving on the night in question belonged to her son, Justin (who, she testified, had a “drug problem”), but had been parked at her house because her son did not have a driver’s license. She testified that, somehow, the Ford Explorer disappeared from in front of her house, she got a telephone call from an unknown person stating that the vehicle could be found in “People’s Park, ” and she went there with appellant to retrieve the vehicle. They found it there, and Anderson testified that she gave appellant her keys to the vehicle, and he agreed to return it to her home that evening. He did not, but instead left a note outside her home that he would return the car the following day.
Appellant testified that, after Anderson left him off at the vehicle in People’s Park and had given him her keys to it and drove off, he had great difficulty getting the vehicle to start, that it took him several hours to repair the misplaced and torn wires under the hood, and that by the time he was able to get the vehicle to her house, she was not there, so he left the note for her and drove off, and in the process of driving from her house to his, he was stopped and arrested. He claimed not to know anything about the drugs found between the front seats, and explained that the prescriptions made out to him that Officer McDougall testified he found in the same place had apparently fallen out of his wallet when he was producing his driver’s license for the officer.
After considering all of this evidence, the court found that appellant had violated the terms of his probation, revoked that probation, ordered a supplemental probation report prepared, and continued the matter to November 9.
On November 9, the trial court sentenced appellant to the midterm of two years for a violation of section 11377.
Appellant filed a timely notice of appeal on December 14. He did not request the issuance of a certificate of probable cause.
III. DISCUSSION
We have thoroughly reviewed the record, including specifically the reporter’s transcripts of the hearings before Judge Hurley on August 26, October 5 and 12, and November 9.
We find no error in Judge Hurley’s denial of appellant’s two Code of Civil Procedure section 170.6 motions to recuse him, because clearly those motions were untimely under that section. It specifically provides, regarding a “criminal cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment.” (See Code Civ. Proc., § 170.6, subd. (a)(2).) At the conclusion of the brief August 26 hearing, Judge Hurley had specifically noted the case had been assigned to “this department. It’s my hearing, it’s mine now.” Nevertheless, appellant’s section 170.6 challenges were not filed until October 1 and 12. Under the clearly-established law on this subject, those filings were manifestly too late. (See, e.g., Motion Picture & Television Fund Hospital v. Superior Court (2001) 88 Cal.App.4th 488, 493-495.)
Secondly, the Berkeley Police Department’s report regarding appellant’s traffic stop, subsequent detention, the search of the vehicle he was driving and the discovery of methamphetamine therein, clearly constitutes substantial evidence justifying the revocation of his probation. Indeed, we agree with the implicit premise of the trial court that the recitations in that report were far more credible than the rather strained version of events regarding the allegedly stolen-and-then-found Ford Explorer presented to the trial court via the testimony of appellant and his friend Anderson.
Third and finally, both the probation report regarding appellant’s extensive criminal record and poor performance while on probation, as well as the trial court’s discussion of that record with appellant’s counsel at the final (November 9) hearing make clear that there was no abuse of discretion by the trial court in its order revoking probation and sentencing appellant to the midterm of two years for his prior violation of section 11377. (See, e.g., People v. Sizemore (2009) 175 Cal.App.4th 864, 879.)
IV. DISPOSITION
The trial court’s order revoking appellant’s probation is affirmed.
We concur: Kline, P.J.Richman, J.