Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA081502, Tomson T. Ong, Judge. Affirmed.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EPSTEIN, P.J.
Javan Stanton appeals from the judgment entered following his conviction by jury on one count of possession for sale of marijuana. (Health & Saf. Code, § 11359.) Appellant contends the trial court erred in denying his motion to suppress evidence because the search that led to the discovery of the marijuana was unconstitutional. We affirm.
Appellant was charged by information with one count of possession of marijuana for sale, a violation of Health and Safety Code section 11359. The information also alleged that appellant had suffered a prior conviction of a serious or violent felony or juvenile adjudication within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that appellant had served a prison term within the meaning of Penal Code section 667.5, subdivision (b). Appellant entered a not guilty plea. Appellant waived his right to a jury trial on the prior conviction allegations.
Appellant filed a motion to suppress evidence pursuant to Penal Code section 1538.5, challenging his arrest and the seizure of the marijuana that was found. At the suppression hearing, officers testified that they received a 911 call, stating that two people were selling drugs at an apartment building and giving detailed descriptions of the people and their clothing. When officers arrived, they noticed the smell of burning marijuana, which became stronger as they approached the apartment in question. The apartment door was open, so the officers looked inside and saw appellant and another person; appellant wore clothing matching the description provided by the 911 caller. Officer Daniel Ochoa asked appellant if he was on parole or probation, and appellant replied that he was on parole, which officers verified.
There were several people in the apartment, so officers asked who rented the apartment and determined that it was Leonard Johnson. After officers asked Johnson for consent to search, Johnson signed a consent to search form.
Appellant told officers that he did not live there, but that he stayed there occasionally, and he told officers that he had a box in the kitchen with his belongings in it. Officer Santos Perez searched the box and found clothing and a black plastic bag containing 29 individually wrapped baggies of marijuana. Perez also found a scale in a closet.
Appellant testified at the hearing that he lived at the apartment, which he stated was rented by his cousin, not by Johnson. He did not have a bedroom, but he slept in the living room and kept his clothing in the living room or in a closet.
The trial court denied appellant’s suppression motion. The court cited three reasons to reject appellant’s reliance on People v. Hua (2008) 158 Cal.App.4th 1027, which held that the entry of officers into an apartment based on the smell of burnt marijuana was not justified by exigent circumstances. First, unlike People v. Hua, where officers were responding to a call about a noise disturbance, here, the officers received a 911 call reporting the sale of narcotics and giving the exact address, apartment number, and specific details about the people and their clothing. Secondly, one of the occupants of the apartment here consented to the entry and the search. Finally, appellant told officers that the box in which the marijuana was found belonged to him. Based on the 911 call, the consent, and the link between appellant and the marijuana, the court denied appellant’s motion to suppress the evidence.
A jury trial commenced. The evidence at trial established that, on March 21, 2009, officers responding to a 911 call went to an apartment building and smelled burning marijuana. As the officers approached the apartment that was the subject of the 911 call, they saw that the door was open and saw people inside who matched the descriptions given in the 911 call, including appellant. There were five people in the apartment.
When Perez asked appellant if any property in the apartment belonged to him, appellant pointed out a white box containing clothing, located in the dining area of the apartment. Perez subsequently searched the box and found clothing, a citation issued to appellant, and a black plastic bag containing 29 individual baggies of marijuana. Appellant stipulated that the baggies contained 96.67 grams of marijuana. Perez also found a scale in a cabinet in a hallway and $140 in appellant’s pocket.
The jury found appellant guilty of possession of marijuana for sale, in violation of Health and Safety Code section 11359. At a court trial, the court found true the allegations of a prior strike and a prior prison term. The court heard and denied appellant’s motion to strike his prior conviction pursuant to People v. Romero (1996) 13 Cal.4th 497. The court sentenced appellant to the high term of three years, which was doubled pursuant to the Three Strikes law to six years, plus one year for the prior prison term, for a total term of seven years, and entered judgment. (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667.5, subd. (b).) Appellant filed a notice of appeal.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On December 31, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On January 12, 2010, appellant filed a supplemental brief, contending that the marijuana should have been suppressed because the search and seizure were unconstitutional. On January 21, 2010, appellant filed another supplemental brief, again challenging the denial of his motion to suppress.
“‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.’ [Citation.]” (People v. Hirata (2009) 175 Cal.App.4th 1499, 1504.) Based on the evidence presented at the suppression hearing, we hold that the trial court properly denied appellant’s motion to suppress evidence.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J. MANELLA, J.