Opinion
F061102 Super. Ct. No. BF133055A
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. HOWARD LIONEL ROPER, Defendant and Appellant.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Kane, Acting P.J., Poochigian, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On August 18, 2010, appellant, Howard Roper, was charged in an information with felony possession of cocaine, a controlled substance (Health & Saf. Code, § 11350, subd. (a), count one) and misdemeanor possession of narcotic paraphernalia (Health & Saf. Code, § 11364, count two). The trial court denied Roper's motion to suppress evidence pursuant to Penal Code section 1538.5.
On August 26, 2010, Roper entered into a plea agreement in which he would admit count one, count two would be dismissed, and he would be placed on Proposition 36 probation. Roper executed and initialed an advisement of rights, waiver, and plea form for felonies, acknowledging the terms of the bargain, the consequences of the plea, and waiving his constitutional rights pursuant to Boykin/Tahl. The trial court established that appellant read, understood, signed, and initialed the plea form. The parties stipulated to a factual basis for the plea based on the police and laboratory reports.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
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Roper pled no contest to count one and the court granted the prosecutor's motion to dismiss count two. The court suspended imposition of sentence and placed Roper on probation pursuant to Proposition 36. On October 8, 2010, appellant filed a timely notice of appeal. Roper did not obtain a certificate of probable cause. Roper's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We will affirm the judgment.
FACTS
At 7:50 p.m. on June 9, 2010, Police Officers Schlecht and Gillespie were on patrol in Bakersfield when they saw Roper walking. When Roper saw the patrol car, he began walking at a faster pace around a corner onto Grace Street. The officers pulled up behind Roper, and exited the patrol car. They asked Roper if they could talk to him for a moment. The overhead lights and the siren of the patrol car were not turned on. The officers did not have their guns drawn. The officers had not removed their handcuffs. The officers were not using their flashlights.
Roper was walking with one hand clenched tightly into a fist. When Schlecht asked Roper if he was carrying anything illegal, Roper replied "no." Schlecht asked Roper if he could search him. In response to this question, Roper put his hands on the back of his head and faced away from Schlecht. With Roper's back facing him, Schlecht approached Roper to conduct a pat-down search. At that point, Schlecht saw a package of cigarettes in Roper's right hand.
Schlecht asked Roper to hand over the cigarette package. Roper complied with the request, but his left hand was still clenched. As Roper handed over the cigarette package, he slightly unclenched his left hand and two white objects fell out of his hand. The objects were slightly off-white and were the size of small rocks. Schlecht described their physical characteristics as similar to rock cocaine and seized them.
The parties stipulated that the crime laboratory analysis revealed the seized material to be .20 grams of cocaine, a usable amount. There was a glass narcotic smoking pipe in the cigarette pack. The pat-down of Roper's pants pocket revealed a second glass narcotic smoking pipe. These pipes are typically used for consuming rock cocaine. Schlecht never asked Roper to stop prior to their face to face encounter.
Roper testified that as he was walking down the street on June 9, 2010, he looked over his shoulder and saw a police patrol car. Roper continued to walk as the patrol car pulled up alongside him. One of the officers appeared injured because his arm was wrapped up. One of the officers asked Roper if he was on probation or parole. Roper replied that he was not and continued to walk. Roper explained he walked six or seven more steps before the officers abruptly stopped the patrol car and exited it. Roper immediately stopped walking. Roper said the officers had their hands hovering around their guns so Roper thought there was something they wanted to talk to him about. Roper stated the officers conducted a patdown search for their safety to insure Roper was not carrying any weapons.
Roper told the officers he was walking to his home, about one-half mile away from where he was stopped. Roper did not approach the officers, though his hand was clenched. Had he approached the officers this way, Roper believed this would be considered a combative move. Roper said he was not aggressive. According to Roper, the officers did not inform him that he had a right to leave. Roper stated he was holding the package of cigarettes in his left hand. One of the officers asked Roper to give him his cigarettes. Roper said he worked very hard to be released from parole. Roper did not consent to be searched because he would not give up his rights so easily.
APPELLATE COURT REVIEW
Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on April 21, 2011, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.