Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA364833 Monica Bachner, Judge.
Jeffrey Lewis, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EPSTEIN, P. J.
Roy Edward Porter appeals from the judgment entered following his conviction by jury on one count of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)). Appellant was sentenced to the midterm of four years, plus three years for a prior narcotics sale conviction (Health & Saf. Code, § 11370.2, subd. (a)), for a total of seven years. We affirm.
On November 18, 2009, at about 4:20 p.m., Los Angeles Police Department Officers Edward Kellogg and Mynerva Gramillo were monitoring the location of Sixth Street and San Julian Street in Los Angeles County for narcotics activity. They were monitoring the location in response to complaints from local business owners and tenants. The officers were located approximately 40 feet above and 140 feet away from the location, and they were using binoculars. The binoculars made it appear that appellant was about 15 feet away from Officer Kellogg. Officer Gramillo testified that her binoculars made it appear that appellant was about 35 feet away from her.
Appellant was seated in front of a homeless shelter at the location. The officers saw codefendant Greg Hammer walk up to appellant and stop to talk with him. The officers were too far away to hear the conversation between appellant and Hammer, but Officer Kellogg saw Hammer take what appeared to be money out of his right pants pocket and hand it to appellant. Appellant put the money in his pants pocket, stood up, looked left, right, and left again, then took what appeared to be a few pieces of rock cocaine out of his left jacket pocket. There were several pieces of off-white solids, approximately half a centimeter in size, although Officer Kellogg later conceded that only one piece was recovered. The substance later was determined to be cocaine base. Appellant put the cocaine into Hammer’s hand. Hammer examined the substance, looked at appellant and nodded, and walked away.
Officer Kellogg watched Hammer walk away for several seconds, then he contacted an arrest team, which was waiting about a block away. The arrest team consisted of Detective Reyes, Detective James Miller, Detective Charles Baley, Officer Alvarado, Officer Mejia, Officer Ernesto Munoz, and Officer Roth. Officer Kellogg told them he had a possible buyer and gave them a description of Hammer and his direction of travel. Officer Kellogg also gave them a description of appellant.
About one minute later, Officer Kellogg saw Detective Baley and Detective Miller drive up to Hammer and detain him about 20 feet from where the transaction occurred. Detective Miller approached Hammer, identified himself as a police officer, and saw Hammer open his hand and drop the cocaine on the ground. Detective Miller told Detective Baley where the substance was, and Detective Baley found one piece and several crumbs of rock cocaine on the ground. Detective Baley and Detective Miller took Hammer into custody, and when they searched him, they found a clear glass pipe used for smoking cocaine. Officer Kellogg never lost sight of Hammer, so he was sure they had detained the right person, but he did not see Hammer drop the cocaine.
After Hammer was arrested, Officer Kellogg resumed monitoring appellant. Officer Gramillo monitored appellant the entire time. Officer Munoz and Officer Roth arrested appellant about a minute and a half after Hammer was arrested. Officer Kellogg did not watch appellant continuously, but he was arrested in the same place where Officer Kellogg originally saw him. The officers searched appellant, but they found no drugs or drug paraphernalia on him. Officer Munoz found $97 in appellant’s pants pocket. Appellant was strip-searched at the police station, but Officer Kellogg did not find any drugs, residue, or paraphernalia on him.
Appellant was charged with one count of sale of a controlled substance, cocaine base. (Health & Saf. Code, § 11352, subd. (a).) The information alleged that appellant had suffered six prior convictions within the scope of Penal Code section 667.5, subdivision (b), and one prior narcotics sale conviction within the scope of Health and Safety Code section 11370.2, subdivision (a). Appellant pled not guilty and denied the special allegations.
Appellant filed a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531, seeking discovery of records regarding misconduct by Officer Kellogg and Officer Gramillo. The court held a Pitchess hearing at which it reviewed all the complaints and ordered four records released as to Officer Kellogg and three released as to Officer Gramillo.
Prior to trial, appellant rejected a plea offer of three years. Following the close of the prosecution’s case, the court denied appellant’s motion for a judgment of acquittal. (Pen. Code, § 1118.1.) Appellant did not testify. The jury found appellant guilty of sale of cocaine base. (Health & Saf. Code, § 11352, subd. (a).)
Appellant waived his right to a jury trial regarding his prior convictions. He subsequently admitted the prior narcotics sales conviction and five of the allegations of prior prison terms, and the prosecutor agreed to strike one of the prior prison term allegations. Defense counsel asked that the prior narcotics sales conviction be stricken, pointing out that it was almost 12 years old and was appellant’s only other narcotics sales conviction. The court denied the motion. The court also denied defense counsel’s motion to place appellant on probation, stating that appellant was statutorily ineligible and that, even if he were eligible, this was not an unusual case warranting probation.
The court sentenced appellant to the midterm of four years, plus three years for the prior narcotics sales conviction (Health & Saf. Code, § 11370.2, subd. (a)), for a total term of seven years, and struck all the prior prison term allegations (Pen. Code, § 667.5, subd. (b)). The court imposed the requisite fines, fees, and conditions, and gave appellant credit for 209 days of actual custody and 208 days of good time/work time credit for a total of 417 days. Appellant filed a timely notice of appeal.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On December 27, 2010, we advised appellant that he had 30 days within which to submit any contentions or issues which he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.