Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA070457 Robert M. Martinez, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KLEIN, P. J.
Daven Raya appeals from the judgment entered following his plea of no contest to possession of marijuana for sale (Health & Saf. Code, § 11359). The trial court sentenced Raya to three years in prison. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In accordance with a negotiated plea agreement, on April 15, 2005 Raya pled no contest to possession for sale of marijuana (Health & Saf. Code, § 11359). He was sentenced to three years in prison, sentence was suspended and he was granted probation under various terms and conditions including that he spend 270 days in county jail or working at the Los Angeles County Parks and Recreation Marshall Canyon Tree Farm. Raya chose to work at the tree farm.
Raya was given credit for three days served in county jail.
At a hearing held on February 1, 2007, Raya admitted being in violation of the terms of his probation. He waived his right to a probation violation hearing and gave up “the right to credit for the time [he had] spent in custody on this case for all purposes[.]” The trial court revoked Raya’s probation, sentenced him to the high term of three years in state prison, then suspended the sentence on the condition he perform 270 days of labor at the tree farm.
On June 26, 2008, Raya failed to appear at a hearing after having been given notice he was to attend. Accordingly, the trial court revoked his probation and issued a warrant for his arrest.
Another probation violation hearing was set for August 14, 2008. At those proceedings Raya made a Pitchess motion asserting that officers involved in his case had falsified a police report. One complaint was deemed relevant. In a complaint filed on November 24, 2003 by Adam C., the officer in question “responded to a particular scene and entered for purposes of conducting a search according to this particular party by lying.” Because it was relevant to Raya’s case, the trial court ordered Adam C.’s name and contact information released to defense counsel.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
On September 18, 2008, another hearing was held regarding Raya’s violation of the conditions of his probation. Probation Officer Kim Sherow testified Raya had failed to submit to monthly drug testing, failed to enroll in drug counseling, failed to pay his monthly financial obligations and had “picked up a new case recently.”
With regard to the new case, at approximately 6:15 a.m. on June 26, 2008, Los Angeles Sheriff’s Deputy John Rose went to the house where Raya was living located at 240 Gunsmoke Drive in the City of Diamond Bar. Rose saw Raya through a front window sitting at a desk “intently working on something.” When other deputies knocked on the front door and announced their presence, Raya grabbed whatever it was he had been working on and ran out of the room to the other side of the house. Rose moved to the side of the house in case Raya attempted to flee by climbing out a window. Instead, Rose heard a slight “commotion” and twice heard the sound of a toilet being flushed.
In the meantime, the deputies at the front door continued to knock, identify themselves as law enforcement officers and advise those inside that they were conducting a “probation sweep.” Deputy Sheriff Michael Finn was one of the several officers at Raya’s front door. A short time later, a resident other than Raya opened the door and allowed the deputies to enter the house. Finn saw Raya coming toward the deputies down a hallway leading from the bathroom. The deputies, including Finn, detained Raya and conducted a “security sweep” of the house for the deputies’ safety. Other deputies had the remaining residents of the house sit on the couch so the deputies “could explain to them why [they] were there and what [their] intentions were.”
Raya told Finn that he slept and kept his things in the front room. Deputies, including Finn, searched the room and found a small digital scale, a larger scale and $108 in “miscellaneous currency.” In addition, Finn noticed marijuana residue on top of a desk. Finn had also seen traces of marijuana on the toilet and floor of the bathroom.
Finn went back outside where Raya was being held and read to him his Miranda rights. Raya chose to waive those rights and told Finn that he had had only a nickel bag of marijuana, but had flushed it down the toilet because he was “scared.”
Miranda v. Arizona (1966) 384 U.S. 436.
Finn believed Raya possessed the marijuana for the purpose of sale. Raya had “no means of smoking it[,] [h]e had baggies on the desk, which are commonly used for packaging marijuana for sales[,] [h]e had the scale with the residue on it for weighing out the marijuana for sales[,] and [he had] the $108 in miscellaneous small denomination[s] of currency on the desk.”
Sofia Raya is Raya’s grandmother. She, too, resides at 240 Gunsmoke Drive in Diamond Bar. When shown the small scale found in Raya’s bedroom, Sofia stated that she used the scale to weigh letters. As to the little baggies, Sofia, who sews, uses them to hold various types of buttons.
Raya testified that the money found at the house belonged to his uncle, Victor Raya. Victor also lived at the house in Diamond Bar. Raya stated that on the day his home was searched, he did not flush any marijuana down the toilet and he did not tell a deputy sheriff that he had done so. Although as a condition of his probation Raya was supposed to have enrolled in a drug rehabilitation program, he had not done so because of the cost. The initial payment for participation in the program was approximately $200.
When officers arrived at Raya’s house on the morning of June 26, 2008, Raya was sitting at a desk in the front room. He had been ironing his clothes for a court appearance scheduled for that day. When he saw the deputy sheriffs, he ran to the back of the house to wake up the rest of his family to inform them of the deputies’ presence. He used the bathroom, flushed the toilet once, then walked down the hall to the front of the house. With regard to his bedroom, Raya indicated the scale had been in the closet and the money had been in a drawer. They were not, as the deputy sheriff had testified, on the desk. In addition, Raya stated there had “never been marijuana inside that room.” Since being granted probation, Raya had “never” possessed marijuana.
After the parties presented argument, the trial court found Raya to be in violation of his probation based on “his failure to report after December of 2000 [sic], his failure to submit to testing, his failure to enroll and participate [in] and complete a drug program,” his possession of paraphernalia associated with the sale of marijuana, and possession of marijuana.
After stating that Raya’s performance on probation had been “miserable,” the trial court declined to reinstate probation and imposed the suspended sentence of three years in state prison. Raya was given credit for 88 days of time actually served, 44 days of good time/work time and 141 days for work at the tree farm, for a total of 273 days. The court ruled that “[a]ll outstanding financial obligations remain[ed] in full force and effect” and, in addition, imposed a suspended $200 parole revocation restitution fine.
Raya filed a notice of appeal on September 22, 2008.
This court appointed counsel to represent Raya on appeal on December 9, 2008.
CONTENTIONS
After examining the entire record, counsel for Raya filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed March 4, 2009, the clerk of this court advised Raya to submit within 30 days any contentions, grounds of appeal, or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied Raya’s 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: CROSKEY, J., KITCHING, J.