Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of the County of Los Angeles, Katherine Mader, Judge, No. SA068821
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant was convicted of one count of selling base cocaine in violation of Health and Safety Code section 11352, subdivision (a) and sentenced to a term of nine years in state prison. On appeal, his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting that we conduct an independent review of the record to determine if there are any arguable issues on appeal. Based on our independent review of the entire record, we have determined that there are no arguable issues on appeal and that the judgment of conviction should therefore be affirmed.
Because defendant was charged with six counts of selling base cocaine, but convicted of only the first of those counts, we state only the facts relevant to that count.
On October 10, 2007, Los Angeles Police Officer Brent Olsen was working undercover as part of a narcotics abatement assignment in the Oakwood area of the Pacific Division near Venice Beach. At about 6:00 p.m., Officer Olsen was riding a bicycle in an attempt to purchase narcotics. He was looking for narcotics dealers. At the corner of 6th Street and Broadway, Officer Olsen contacted defendant. Officer Olsen asked defendant if he was “serving or working,” and defendant responded affirmatively. Defendant then asked Officer Olsen what quantity of narcotics Officer Olsen wanted to buy. Officer Olsen initially asked defendant for “$20 worth of narcotics.” Defendant removed an item from his rear waistband and handed it to Officer Olsen. Because Officer Olsen observed that defendant had more such items in a bindle, he asked defendant for an additional $20 worth of narcotics, and defendant provided a second item to him. Officer Olsen paid defendant $40.
Officer Olsen was wearing a “one-way broadcast wire” for protection that day and, after he completed the transaction with defendant, he gave a description of defendant to the officers who were covering him, but they did not immediately arrest defendant because they did not want defendant to realize that Officer Olsen was a police officer. Officer Olsen rode away on his bicycle, and later booked the items he purchased from defendant into evidence. Those items were subsequently determined to be.65 grams of cocaine base, commonly known as cocaine rock or crack cocaine.
On October 10, 2007, Los Angeles Police Officer David Martin was working in the narcotics abatement unit in the area of 6th Street and Broadway in Venice. Over the radio, a fellow officer gave him a location and description of a person to be stopped. Near the location provided, he saw defendant who fit the description provided. Officer Martin stopped defendant, and asked him for identification, which defendant provided. Officer Martin did not search or arrest defendant at the time. Defendant was subsequently arrested on February 19, 2008.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney charged defendant in an information with six counts (Counts 1 through 6) of selling base cocaine in violation of Health and Safety Code section 11352, subdivision (a)—each count a separate felony. The District Attorney further charged defendant in Count 7 with street terrorism in violation of Penal Code section 186.22, subdivision (a)—a felony. The District Attorney alleged as to Counts 1 through 6 that defendant committed the charged offenses for the benefit of, at the direction of, or in association with, a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A). The District Attorney further alleged that defendant had suffered six nonviolent felony convictions within the meaning of section 667.5, subdivision (b). The District Attorney also alleged that defendant had suffered five prior convictions for the sale of a controlled substance within the meaning of Health and Safety Code section 11370.2, subdivision (a).
All further statutory references are to the Penal Code, unless otherwise noted.
Defendant pleaded not guilty to all counts and denied the special allegations. In response to defendant’s pretrial Pitchess motion, the trial court held an in-camera hearing and ordered that specified personnel records of certain police officers be produced to defendant. A jury trial commenced and, outside the presence of the jurors, defendant admitted suffering six prior convictions of nonviolent felonies. Also outside the presence of the jury, the District Attorney dismissed all of the gang enhancement allegations and Count 7. Defendant moved before verdict for a judgment of acquittal pursuant to section 1118.1, which motion the trial court denied. The jury returned a verdict convicting defendant on Count 1 and acquitting him on Counts 3 through 6. The jury deadlocked on Count 2, the trial court declared a mistrial as to that count, and the District Attorney subsequently dismissed it.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
The trial court sentenced defendant on Count 1 to the middle term of four years, plus an additional consecutive three-year term pursuant to Health and Safety Code section 11370.2, subdivision (a), plus an additional consecutive one-year term pursuant to section 667.5, subdivision (a) and an additional consecutive one-year term pursuant to section 667.5, subdivision (b) for an aggregate sentence on Count 1 of nine years. Pursuant to section 1385, the trial court struck the two remaining Health and Safety Code section 11370.2, subdivision (a) allegations and the three remaining section 667.5, subdivision (b) allegations.
Pursuant to defendant’s ex parte application, the trial court amended its December 4, 2008, minute order nunc pro tunc to reflect that certain enhancements were struck pursuant to section 1385. Defendant provided the amended minute order—which was not included in the record—with his brief and we take judicial notice of it.
DISCUSSION
As noted above, appointed counsel filed an opening brief in accordance with People v. Wende, supra, 25 Cal.3d 436. We gave notice to defendant that his appointed counsel had not found any arguable issues and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted us to consider. Defendant did not file a supplemental brief.
We examined the entire record to determine if there were any arguable issues on appeal. Based on that independent review, we have determined there are no arguable issues on appeal. We are therefore satisfied that defendant’s appointed counsel has fully satisfied his responsibilities under People v. Wende, supra, 25 Cal.3d 436.
DISPOSITION
The judgment of conviction is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.