Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA369885 Ronald H. Rose, Judge.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KITCHING, J.
Cynthia Pena appeals from the judgment entered following her plea of no contest to possession for sale of heroin (Health & Saf. Code, § 11351). Imposition of sentence was suspended and Pena was granted three years formal probation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the transcripts of the Penal Code section 1538.5 motion to suppress evidence and the preliminary hearing.
a. The prosecution’s case.
On March 28, 2010, Walter Godinez was “working [at the] Park Services Bureau for [the] Belvedere Station... Office of Public Safety.” At approximately 4:30 that afternoon, Godinez and his partner, Los Angeles County Deputy Sheriff Dawanna Gilbert, were on patrol in a marked car near the 5200 block of 6th Street in East Los Angeles. As the two deputies were driving north on Atlantic Boulevard, approaching Hubbard Street, Godinez saw “a vehicle enter the intersection unsafely and go through the red light.” The vehicle was traveling west on Hubbard Street, then made a right-hand turn into the northbound lanes of Atlantic Boulevard. The two officers followed the car for several hundred feet, then decided to make a “traffic stop on the 5200 block of 6th Street, adjacent to Atlantic Park.”
After the car pulled over to the side of the road and stopped, Godinez got out of the patrol car and approached the passenger side while his partner, Deputy Gilbert, approached the driver’s side of the vehicle. Seated in the passenger’s seat of the car was appellant, Pena.
Pena remained seated inside the car when, after asking him for his driver’s license, Deputy Gilbert had the driver get out of the car and walk to the sidewalk. Although he had produced a license, the driver appeared nervous and was sweating profusely. In addition, he was “fidgeting.” He placed his hands “down towards his pockets as if he [were] trying to either hide or conceal something.” Godinez searched the man as Deputy Gilbert interviewed Pena. During his search of the driver, Godinez found “a white substance [which] appeared to be methamphetamine.” After finding the methamphetamine, Godinez handcuffed the driver and placed him in the patrol car.
As he was searching the driver, Godinez overheard Deputy Gilbert ask Pena, “ ‘Are there any weapons or drugs in the vehicle that we should know about?’ ” Pena replied, “ ‘I don’t have anything. You can search me.’ ” Gilbert searched Pena and found nothing. When Deputy Gilbert then asked Pena if she had any drugs in her purse, Pena responded, “ ‘I don’t know.’ ” Gilbert searched Pena’s purse in part to “find out who she was” as she had given the deputy no identification. Gilbert stated, “She gave me no I.D.... [S]he said she had just changed her name, her social security number and [other documents], so she was just giving me the runaround about who she was.” In addition, Pena’s “actions [made the deputy] believe that she was hiding something.” She appeared to be agitated.
Inside one compartment of Pena’s purse Gilbert found a clear plastic baggie containing 24 small, multi-colored balloons, each of which contained a “slight brown substance, resembling heroin.” In another compartment, Gilbert found baggies containing a “white crystalline substance resembling methamphetamine” and “a green leafy substance resembling marijuana.” The purse also contained $250 in mixed bills. In addition to the purse, a pink make-up bag found in the area of the car where Pena had been sitting contained a pipe which was “burnt at one end” and had a small amount of white and brown residue at the other.
It was later stipulated that a senior criminalist at the Los Angeles County Sheriff’s Department Scientific Services Bureau analyzed the contents of two of the 24 balloons and determined that they contained a total net weight of approximately.35 grams of a solid substance containing heroin. In addition, the criminalist weighed the remaining 22 balloons and determined that their gross weight amounted to approximately 12.88 grams.
Los Angeles County Sheriff’s Deputy Thomas Garcia was assigned to the Narcotics Division at the East Los Angeles Station and is an expert with regard to the reasons narcotics are possessed. It was Garcia’s opinion that the “heroin retrieved [from Pena] was possessed for the purpose of sales.” His opinion was based on the “totality of circumstances.” Initially, the deputy considered the number of balloons found in Pena’s possession. It was his opinion that heroin is generally sold in “bulk form.” In addition, the amount of money Pena possessed indicated “that prior sales” had been made. Further, the amount of heroin possessed was inconsistent with that used by “an average user” and Pena’s demeanor when she was taken into custody did not indicate that she was under the influence. Finally, Pena was “found in a vehicle, ” a common way of transporting and delivering illegal substances.
b. Defense evidence.
Pena testified that in March 2010, she had been the passenger in a vehicle when police officers pulled the car over. After the car had come to a stop, the female officer approached the driver and asked him “whether there were drugs or weapons in the vehicle.” The driver “admitted that he had something with him” and “[h]e got arrested.” The female officer did not ask Pena any questions.
After the driver was ordered out of the car, Pena was left “just sitting” in the passenger seat. However, “[a] couple of minutes” later, the female officer spoke to Pena. She told Pena to get out of the car and that she was being placed under arrest. After ordering Pena to sit on the curb and to take off her shoes, the officer searched Pena, placed her in handcuffs and had her sit in the back seat of a second patrol car which had arrived at the scene. The officer had not asked for Pena’s permission to search her. Just after placing Pena in the patrol car, Deputy Gilbert, again without asking Pena’s permission, retrieved Pena’s purse from the back seat of the car and searched it.
Gilbert had asked Pena if she had identification, and Pena had told her that she did not have any “on [her].” Pena did not have a conversation with the deputy about “getting married and ‘I don’t know’ and all of that[.]” Pena had not recently changed her name.
2. Procedural history.
Following a preliminary hearing, on June 7, 2010 Pena was charged by information with one count of possession for sale of heroin in violation of Health and Safety Code section 11351 (count 1), one count of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) (count 2) and one count of possession of a smoking device in violation of Health and Safety Code section 11364, subdivision (a) (count 4).
A Pitchess motion was held on August 2, 2010. After reviewing the records of the arresting officers for complaints alleging “dishonesty and unlawful search and seizure, ” the trial court found no discoverable material.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
On August 18, 2010, Pena made a Penal Code section 1538.5 motion to suppress the evidence of the narcotics found in her purse. After hearing testimony by both Pena and the arresting officers, the trial court denied the motion concluding that Pena had “consented to the search.”
Rather than go to trial, at proceedings held on September 15, 2010, Pena decided to accept the People’s offer of a plea bargain. In exchange for her plea of guilty or no contest to possession for sale of heroin in violation of Health and Safety Code section 11351 as alleged in count 1, imposition of sentence would be suspended and Pena would be granted three years formal probation, one condition of which would be that she serve 180 days in county jail.
After waiving her right to a jury trial, her right to confront and cross-examine the witnesses against her, her right to use the subpoena power of the court to present a defense and her privilege against self incrimination, Pena pleaded no contest to the crime of possession for sale of heroin. The trial court then suspended imposition of sentence and placed Pena on formal probation for a period of three years under various terms and conditions, including that she serve 180 days in county jail.
Pena was awarded credit for 32 days actually served in county jail and 32 days of good time/work time, for a total of 64 days. She was ordered to pay a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (Pen. Code, § 1202.45), a $50 lab analysis fee (Health & Saf. Code, § 11372.5), a $30 court security assessment (Pen. Code, § 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code, § 70373).
The trial court granted the People’s motion to dismiss the remaining counts and allegations pursuant to Penal Code section 1385.
Pena filed a timely notice of appeal on September 29, 2010.
This court appointed counsel to represent Pena on appeal on January 24, 2011.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed April 8, 2011, the clerk of this court advised Pena to submit within 30 days any contentions, grounds of appeal or arguments she wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J.CROSKEY, J.