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People v. Smith

California Court of Appeals, Second District, Sixth Division
Apr 29, 2009
2d Crim. B210928 (Cal. Ct. App. Apr. 29, 2009)

Opinion

NOT TO BE PUBLISHED

Superior Court County of Los Angeles No. NA077859, Gary J. Ferrari, Judge.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


COFFEE, J.

James David Smith appeals from the judgment following his no contest plea to carrying a dirk or dagger (Pen. Code § 12020, subd. (a)(4)) and his admission of a prior strike conviction within the meaning of the Three Strikes Law. (§§ 1170.12, subds. (a)-(d); 667, (b)-(i).) The trial court dismissed the strike, imposed and stayed a three-year sentence and placed appellant on three years probation. It included the condition that appellant serve 240 days in county jail and awarded him custody credits of 240 days for time served.

FACTS

On March 30, 2008, at approximately 5:00 a.m., three City of Long Beach police officers saw appellant, his girlfriend and a male companion at a Mobil gas station mini mart. The officers, in three separate patrol cars, drove into the gas station. All of the officers had their headlights on, but had not activated their spotlights. Officer Lucero stepped out of his patrol car and asked appellant if he was on parole or probation. Appellant said he was on parole and another officer confirmed appellant's parole status. Lucero searched appellant and found a spring loaded knife with a two-inch blade in his right front pants pocket.

Appellant testified that he was standing outside the window at the gas station mini mart. He was watching the officers who were across the street helping to load a car onto a tow truck. After they finished, all three patrol cars drove quickly into the gas station, and illuminated appellant with spotlights. Appellant felt that he was not free to leave.

Lucero asked appellant and his companions what they were doing and inquired whether anyone was on probation. Appellant said nothing because he was on parole, not probation. Lucero told appellant to empty his pockets and put their contents on the hood of his car. One of the officers reached into appellant's pocket and retrieved the knife. The officer told appellant that he would have to give up his knife, and that the police were going to "let him go." Appellant then told the officers that he was on parole.

Following the preliminary hearing, appellant filed a motion to suppress evidence of the knife recovered during the search. (§ 1538.5.) The trial court denied the motion. It found that the police officers' testimony was credible; the contact between appellant the officers was consensual; and the officers had a right to conduct a search. Appellant then entered his plea. The court indicated that the factual basis for the plea was predicated upon the testimony received during the section 1538.5 hearing. It dismissed the strike prior and placed appellant on probation.

We appointed counsel to represent appellant in this appeal. After reviewing the record, counsel filed an opening brief raising no issues and requesting this court to independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

On November 14, 2008, we advised appellant that he had 30 days in which to submit a written brief or letter stating any contentions or arguments he wished us to consider. We have received no response from him.

We have examined the entire record and are satisfied that appellate counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d. at p. 441.)

The judgment is affirmed.

We concur: GILBERT P.J., YEGAN, J.


Summaries of

People v. Smith

California Court of Appeals, Second District, Sixth Division
Apr 29, 2009
2d Crim. B210928 (Cal. Ct. App. Apr. 29, 2009)
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAMES DAVID SMITH, Defendant and…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Apr 29, 2009

Citations

2d Crim. B210928 (Cal. Ct. App. Apr. 29, 2009)