Opinion
D076167
06-18-2020
THE PEOPLE, Plaintiff and Respondent, v. DARNELL SNOWDEN, Defendant and Appellant.
Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD279559) APPEAL from a judgment of the Superior Court of San Diego County, Laura Halgren, Judge. Affirmed. Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Respondent.
FACTUAL BACKGROUND
In October and November of 2018, San Diego County Deputy Sheriff Whitney Worthington (Worthington) was working undercover assigned to create a social media account that might discover instances of pimping, prostitution, and human trafficking. As part of her responsibilities, Worthington created a Facebook page under the alias Ash Lee. On October 10, 2018, an individual who provided the profile name Rook Jiggs (Rook) contacted her. Worthington passed the information on to Detective Joseph Kodadek.
Worthington's contact with Rook was minimal. He told her, however, that he was then in prison and that after 12 years of confinement he was close to being released.
On November 2, 2018, Rook sent his cell phone number to Worthington. Afterward they began texting each other. They discussed the earnings of Ash Lee and the possibility she might work as a prostitute for Rook. Worthington said she would go on dates with him, and he agreed to provide advice on security. Rook solicited a fee, that would be sent via Green Dot MoneyPak.
Worthington recorded messages and phone calls with Rook. Rook in return sent photos of himself and told her his real name was Darnell Snowden (Snowden), defendant herein.
On November 3, 2018, Rook asked Worthington to get a Green Dot MoneyPak so he could obtain money that Ash Lee made. Worthington on that day went to a drugstore and bought a Green Dot MoneyPak for $150.00.
After reviewing the pictures and texts that Worthington gave him, as well as examining a Facebook account that identified defendant as an inmate at California State Prison Solano in Vacaville, California, Detective Kodadek arranged with the Special Investigations Unit at the prison to set up an after-hours phone call to confirm defendant was in possession of a cell phone after lockdown.
At 11:30 p.m. on November 7, 2018, while defendant was asleep, investigators within the prison awakened defendant and his cellmate. They searched defendant's cell. In a gap between defendant's bed and bedframe they found a cell phone. A correctional officer conducted a forensic download of defendant's cell phone before turning it over to Detective Kodadek, who then compared the text messages on it to the messages from Worthington's phone. He concluded the messages were the same on both phones.
PROCEDURAL BACKGROUND
By way of an information filed on March 5, 2019, defendant was charged in count 1 with causing Ash Lee to become a prostitute in violation of Penal Code section 266i, subdivision (a)(2). In count 2, he was charged with attempting to derive support from Ash Lee's income from prostitution in violation of sections 266h, subdivision (a) and 664. It was also alleged defendant suffered one strike prior in violation of section 667, subdivisions (b-i).
All further statutory references are to the Penal Code. --------
On May 3, 2019, a jury found defendant guilty of attempted pimping as charged in count 2 of the information. The jury could not reach a verdict on count 1, and the court declared a mistrial as to that count.
On June 17, 2019, pursuant to a negotiated plea, defendant waived his right to appeal the conviction on count 2. In return, the prosecution dismissed count 1. On July 9, 2019, the trial court sentenced defendant on count 2 to the middle term of two years, doubled based on the strike prior to four years consecutive to the term in another case, CD726312. The court stayed the $300 restitution and matching suspended restitution fines (§§ 1202.4, subd. (b) & 1202.45, respectively), and deleted the remaining fines and fees pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157.
The sentencing court also authorized credits that accrued between January 3 and July 9, 2019, to be allocated to the instant case instead of case CD726312. It gave defendant 188 actual days of credit plus 188 days for good time behavior, for a total of 376 days of credit under section 4019.
Defendant filed a timely notice of appeal.
Defendant's counsel on appeal has filed a brief under People v. Wende (1979) 25 Cal.3d 436, asking this court to review the record in order to determine if there are errors. In order to assist us, counsel, pursuant to Anders v. California (1967) 386 U.S. 738, requested we examine the waiver of defendant's right to appeal and whether a search warrant was required for the phone seized from his cell on November 7, 2018.
Defendant was notified by this court that he had a right to personally file a supplemental brief on his behalf. He has not done so.
ANALYSIS
Because of its significance, we begin first by examining defendant's waiver of his right to appeal.
The change of plea form filed in this case reflects defendant, in writing, consented to waiving his right to appeal the conviction of count 2. At the June 17, 2019 hearing in which defendant changed his plea, the following discussion occurred between the court and defendant:
"The Court: You previously were convicted on count 2 in this case. That relates to the attempted 266(h)(a), correct?
"Trial Counsel: Yes, [Y]our [H]onor, attempted pimping.
"The Court: For the agreement today, you're going to be waiving your appellate rights on that conviction. And then the District Attorney will dismiss the other charge against you. The stipulation will be for four years. That you'll serve consecutively to the prison term that you're currently serving.
"Is that your understanding?
"Appellant: Yes."
We are satisfied that defendant's waiver of his right to appeal was knowing, intelligent, and voluntary, as required by People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 (Vargas). However, unless explicit, such waivers normally extend to substance and proceedings prior to the waiver, not to all possible future errors. (Id. at p. 1662.) Here, defendant's waiver was general, as was the waiver in Vargas. With respect to sentencing and any matters postwaiver, we have examined the record and conclude there was no error.
Because we have found valid defendant's waiver of appeal of issues in connection with his change of plea, we conclude the issue of the cell phone search has been forfeited. In any event, we note convicted prisoners like defendant lack any legitimate expectation of privacy in jail cells. (See People v. Davis (2005) 36 Cal.4th 510, 527; see Hudson v. Palmer (1984) 468 U.S. 517, 526-527.)
We have conducted an independent review of the record and find that there are no reasonably arguable issues; and that defendant has been competently represented by counsel in this appeal.
DISPOSITION
Judgment affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. AARON, J.