Opinion
A150649
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. LLOYD EUGENE WHITE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR176076)
Appellant Lloyd Eugene White appeals following a court trial convicting him of multiple offenses. Defendant's counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Defendant has filed a supplemental brief. We have reviewed the record and will modify the judgment to correct two errors regarding fees and fines. We find no other errors or arguable issues that would result in a disposition more favorable to defendant, and affirm the judgment as modified.
FACTUAL BACKGROUND
On May 29, 2015, Detectives Alfonso Ortiz and Thomas Kvamme had received information about a car with possible narcotics inside. They saw defendant driving a car matching the description, and followed him into a parking lot. The detectives approached defendant's car and greeted him. Ortiz saw an open can in a bag; although defendant denied it was alcohol, when he lowered the bag slightly Ortiz recognized it to be malt liquor. Ortiz repeatedly told defendant to place his hands on the steering wheel but defendant did not do so. Instead, he repeatedly lowered his right hand near the center console, and the detectives became concerned he was reaching for a weapon or attempting to destroy evidence. They ordered him out of the car but he resisted and had to be physically removed.
The detectives asked defendant for identification and defendant said it was in his car. When Ortiz retrieved the identification from defendant's car, he smelled marijuana. The detectives searched the car and found two loaded guns, methamphetamine (including baggies containing different amounts), hydrocodone, cocaine base, and a digital scale. After being advised of his Miranda rights, defendant told law enforcement he was an addict, sold drugs to support his habit, and kept guns for protection. A search warrant for a cell phone found in defendant's car revealed more than 100 text messages indicating defendant was selling methamphetamine and marijuana. Kvamme, designated as an expert in the recognition of narcotics for sale, testified that the quantity and packaging of the methamphetamine found in defendant's car indicated it was possessed for sale.
PROCEDURAL BACKGROUND
In December 2015, defendant was charged by information with being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 1), possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 2), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 3), possession of methamphetamine with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 4), possession of cocaine (Health & Saf. Code, § 11350, subd. (a); count 5), possession of codeine (Health & Saf. Code, § 11350, subd. (a); count 6), and misdemeanor resisting a police officer (§ 148, subd. (a); count 7). The information also alleged a prior prison term (§ 667.5, subd. (b)), and three prior strike convictions for lewd or lascivious acts on a child (§§ 288, 667, subds. (b)-(i)).
All subsequent section references are to the Penal Code.
In May 2016, the trial court denied defendant's motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), after conducting a hearing outside of the presence of the prosecutor. In June 2016, defendant filed a motion to suppress (§ 1538.5). Following an evidentiary hearing at which Detectives Ortiz and Kvamme testified, the trial court denied the motion.
The detectives' testimony at the suppression hearing was substantially the same as their testimony at trial, set forth above.
In August, defendant waived his right to a jury trial and the case proceeded to be heard by the court. The court found defendant guilty on all counts and found true the prior prison term and strike allegations. The court denied defendant's Romero motion to dismiss two or more of his prior strikes, and sentenced appellant to an aggregate term of 25 years to life.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
Defendant was adequately represented by legal counsel throughout the proceedings. The trial court did not abuse its discretion in denying the Marsden motion. The motion to suppress was properly denied. The jury trial waiver was proper. Substantial evidence supports the convictions. The court did not abuse its discretion in denying the Romero motion and sentencing defendant pursuant to the Three Strikes law. (§ 667, subd. (e)(2)(C)(iv)(III) [Three Strikes sentencing if defendant has prior § 288 conviction, even if current conviction is not a serious or violent felony].)
We find two errors in the fees and fines imposed. First, the trial court imposed a $205 fee pursuant to Health and Safety Code section 11372.5 on four counts. This section provides: "Every person who is convicted of a violation of [certain statutes, including Health & Saf. Code, §§ 11350, 11378, & 11379] shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense." We will modify the judgment to reduce this fee to $50 for counts 2, 3, 5, and 6. Second, the trial court imposed a $287 fine pursuant to Health and Safety Code section 11350, subdivision (c), for counts 5 and 6. This section authorizes fines "whenever a court grants probation pursuant to a felony conviction under this section . . . ." Probation was not granted in this case. Accordingly, we will modify the judgment to omit these fines.
The abstract of judgment erroneously also imposes this fee on count 4, which is not a conviction for which a Health and Safety Code section 11372.5 fine is authorized. --------
In his supplemental brief, defendant claims the detectives never asked him for his identification and he never told them it was in his car. He also claims that he waived his right to a jury trial only because his trial counsel said the court would lower his bail amount if he did so. No record evidence supports either claim. "[O]ur review on a direct appeal is limited to the appellate record. [Citations.] Because defendant's claim is dependent upon evidence and matters not reflected in the record on appeal, we decline to consider it at this juncture." (People v. Barnett (1998) 17 Cal.4th 1044, 1183.)
Defendant argues he has the right to "see" the confidential informant, presumably referring to the source of the information obtained by the detectives. Defendant produced no evidence that the informant was a material witness, and therefore failed to establish an entitlement to this information. (People v. Lawley (2002) 27 Cal.4th 102, 159 ["[T]he prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the burden of adducing ' " 'some evidence' " ' on this score."].)
Defendant asks for a writ of habeas corpus but has not filed a petition seeking such relief. Even if this court were to construe defendant's supplemental brief as a writ petition, it is neither procedurally nor substantively adequate to establish a prima facie case for relief.
Finally, defendant requests the appointment of new counsel on appeal. He fails to identify any basis for the request, and our independent review of the record does not reveal any grounds to grant it. (See Marsden, supra, 2 Cal.3d 118.) Accordingly, we deny defendant's request for new counsel on appeal.
DISPOSITION
The judgment is modified to provide that the Health and Safety Code section 11372.5 fine is imposed on each of counts 2, 3, 5, and 6, in the amount of $50, and to omit the Health and Safety Code section 11350, subdivision (c) fine. As so modified, the judgment is affirmed. The trial court is ordered to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment that has been modified accordingly.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.