Opinion
F062194 Super. Ct. No. BF134255A
12-13-2011
THE PEOPLE, Plaintiff and Respondent, v. RYAN JOSEPH SAFIR, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Wiseman, Acting P.J., Dawson, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, 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.
Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), appellant, Ryan Joseph Safir, pled no contest to possession of cocaine for purposes of sale (Health & Saf. Code, § 11351). The court suspended imposition of sentence and placed appellant on three years' probation, one of the terms of which was that he serve 12 months in county jail.
Appellant filed a timely notice of appeal in which he stated the instant appeal is based on the denial of his suppression motion. Insofar as the record reveals, appellant did not request, and the court did not issue, a certificate of probable cause (Pen. Code, § 1237.5).
Appellant's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court's invitation to submit additional briefing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
On October 1, 2010, law enforcement personnel, including Kern County Sheriff's Department Deputies John Coleman and David Hubbard, in an effort to execute an arrest warrant that had been issued for Ryan Potochnic, went to an apartment in Kern County where on previous occasions other deputies had been able to contact Potochnic. Ann Witzig answered the knock on the door and told the deputies the apartment was hers and that Potochnic did not live there. Deputy Coleman then asked for permission to enter that apartment and search for Potochnic. Witzig gave her consent and the deputies entered. Before they began their search, Witzig stated that no one was then in the apartment except for her daughter and her.
Our factual summary is taken from the testimony of Deputies Coleman and Hubbard at the hearing on appellant's suppression motion.
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Deputy Hubbard testified to the following. He walked through the living room, noticed a bedroom that was "dark inside," identified himself as a deputy sheriff and ordered anybody inside the room to come out. Appellant got up off of a bed in the bedroom and, in response to questions from Deputy Hubbard, said that his name was Ryan and that he was on probation. At that point, Deputy Hubbard "detained him in handcuffs and conducted a patdown search." Deputy Hubbard did not know if the person he handcuffed and searched was Potochnic. Appellant "matched the description" but the deputy had had no previous contacts with Potochnic. Shortly thereafter, Deputy Hubbard went to a nearby residence where he "located the actual Ryan Potochnic and took him into custody."
After Deputy Coleman learned from Deputy Hubbard that appellant had been found in the bedroom and that the room had not been "cleared," Deputy Colman entered the bedroom to determine if anyone was in there. Deputy Coleman indicated he "used [his] flashlight to look under the bed," "[a]nd that's when [he] saw" a pair of shoes. Inside one of the shoes was a glass jar containing a baggie with a white substance inside. The parties stipulated that the substance found in the jar was 7.67 grams of cocaine. Appellant told Deputy Coleman the shoes were his, but when the deputy "asked him about the cocaine," appellant said, "what cocaine[?]"
Procedural Background
The prosecutor, in his papers in response to the suppression motion, argued, inter alia, that appellant had "the burden of showing an objective and subjective reasonable expectation of privacy in the place searched or the thing seized."
The court ruled on the suppression motion by a written minute order, in which it stated: "The threshold inquiry is whether defendant ... had a reasonable expectation of privacy in the room in which he was found.... [¶] Defendant ... did not testify. Nor did he present the testimony of Ms. Witzig or another resident of the subject property to explain his presence in the room in which he was found. It is thus unknown if defendant ... was renting a room, or [if he was] a guest, or whether Ms. Witzig or some other occupant of the property even knew he was there.[] [¶] Defendant argues that his expectation of privacy can be inferred from the evidence that he was found situated in bed, in a darkened room with his shoes on the floor. Such evidence tends to show that the defendant had a degree of comfort with his surroundings at that moment. But defendant's actual, subjective expectation of privacy, and the objective reasonableness of that expectation, remain speculative. Defendant failed to demonstrate that he had a subjective expectation of privacy that was objectively reasonable." (Unnecessary capitalization omitted.)
DISCUSSION
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.