Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC063910
Kline, P. J.
Joe E. Sturns appeals from a final judgment entered after his plea of no contest to possession of cocaine base for sale. His court-appointed attorney has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
PROCEEDINGS BELOW
On June 18, 2007, the San Mateo County District Attorney filed an information charging appellant with six felony offenses: resisting a police officer (Pen. Code, § 148.10, subd. (a)–Count 1); use of unlawful force against a police officer (§ 243, subd. (c)(2)–Count 2); willful and violent deterrence of police officers (§ 69–Counts 3, 4, and 6), including the infliction of great bodily injury on one of said officers (Count 6); and possession of cocaine base for sale (Health & Saf. Code, § 11351.5–Count 5). The information additionally alleged that appellant had served two prior prison terms and had four prior convictions for drug offenses.
All dates are in that year.
All statutory references are to the Penal Code unless otherwise indicated.
On July 17, appellant moved to suppress evidence (§ 1538.5), asserting that the initial stop and subsequent detention were unsupported by probable cause, as was the warrantless search of his vehicle. Appellant thereafter filed a Marsden motion that was denied on August 24. After a contested hearing, appellant’s suppression motion was denied on September 18.
People v. Marsden (1970) 2 Cal.3d 118.
On September 24, appellant pled no contest to possessing cocaine for sale (Count 5) and to resisting a police officer (Count 3). Under the terms of the plea negotiation, a three-year top would be imposed for commission of both offenses, the district attorney would not oppose probation, which would be left open to the court, and the remaining charges would be dismissed.
On October 26, the court sentenced appellant to the lower term of three years for Count 5, the drug offense, and the lower 16-month term for Count 3, resisting an officer, to be served concurrently. The court awarded 183 days of presentence credits, plus 90 days for good behavior, and imposed mandatory restitution fines. Appellant was ordered to register as a narcotics offender and to submit to genetic marker testing.
A timely notice of appeal challenging denial of the motion to suppress was filed on October 29.
FACTS
The relevant facts are only those elicited at the suppression hearing.
East Palo Alto Police Officer Rami Khoury was, on April 27, dispatched to 1 Daphne Court on a report that several persons were smoking marijuana and drinking alcohol on the premises, which was located in an area known to have a high level of narcotics activity. When he alighted from his patrol car, he noticed the smell of marijuana coming from the house and saw 8 to 10 people, some of whom were minors, on the side of the house near the driveway, where he also saw beer bottles. As he and accompanying Officer Ernesto Montez approached the house, the smell of marijuana got stronger; although when they reached the house the officers did not see anyone smoking marijuana.
Officer Khoury recognized appellant among the group on the driveway because of numerous prior contacts. As the two officers drew nearer, appellant walked away from the scene past Khoury, who noticed that appellant smelled of marijuana and alcohol and that his eyes were red and watery. Khoury asked appellant to stop walking and come over to him but appellant, who had his right hand in his pocket, kept walking and eventually entered a car parked in front of the house. Based on the smell of marijuana and alcohol he emitted, Officer Khoury believed appellant possessed authority to detain him as he walked toward and then entered the vehicle. Khoury also knew from past encounters with appellant that he stays where he is when he is confronted and does not possess drugs, but attempts to leave the scene when he does.
Appellant remained in the car for approximately 20 to 30 seconds. Officer Khoury stated at the suppression hearing that he noticed appellant “going inside the center console.” When appellant got out of the vehicle, Officer Khoury smelled marijuana coming from him and also from inside the vehicle. After handcuffing appellant and obtaining the key to the car, Officer Khoury opened the door, smelled marijuana, and saw a small piece of plastic sticking out of the partially open center console. The bag contained approximately 9 grams of an off-white colored substance, which Officer Khoury suspected was cocaine base. Khoury immediately placed appellant under arrest.
DISCUSSION
The trial court denied appellant’s motion to suppress on the basis of its conclusion that Officer Khoury had probable cause to arrest him. That conclusion rested on Officer Khoury’s testimony that he detected the odor of marijuana about appellant and saw him appear to place something in the center console while he was briefly inside the vehicle. That conclusion is fully supported by the testimony of Officer Khoury and by the case law the trial court specifically relied upon. (Mann v. Superior Court (1970) 3 Cal.3d 1, 7.)
During the periods of time his pleas and sentence were negotiated, appellant was represented by able counsel. The court fully informed appellant of the consequences of his pleas and the rights he would be giving up by his pleas before they were entered, and the record satisfactorily shows appellant’s pleas were fully informed and freely made.
There is no reason to question appellant’s mental competence to participate in the proceedings and enter his pleas.
There was no sentencing error.
There are no legal issues that require further briefing.
The judgment and sentence imposed are affirmed.
We concur: Haerle, J., Lambden, J.