In re Joseph S.

Filed 3/12/07 In re Joseph S. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Joseph S. appeals from his adjudication as a ward of the court. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (Nov. 27, 2006, S133114) ___ Cal.4th ___ [2006 Cal. Lexis 15095]; People v. Wende (1979) 24 Cal.3d 436; see Smith v. Robbins (2000) 528 U. S. 259.) Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

A Welfare and Institutions Code section 602 petition filed on August 15, 2006, in San Francisco Juvenile Court charged appellant in count 1 with possession for sale of cocaine base (Health & Saf. Code,  11351.5) and in count 2 with misdemeanor possession of marijuana (Health & Saf. Code,  11357, subd. (b)). These allegations went to a contested hearing, after which the juvenile court found that appellant had possessed cocaine base, a lesser offense of count 1 and had also possessed marijuana.

A dispositional hearing was held on October 17, 2006. The juvenile court placed appellant on probation and committed him to Log Cabin Ranch School.

Appellant filed a timely notice of appeal on October 27, 2006.

The evidence presented at the jurisdictional hearing established that on August 13, 2006, about 11:00 p.m., San Francisco Police Officers Barry Parker and Mikail Ali were patrolling in an unmarked police car. Both officers were members of the Gang Task Force and were in plainclothes, except for wearing raid jackets marked with police patches. As they approached the 1500 block of Sunnydale, they noticed three males in a parking lot sort of in the dark standing next to the building line of 1569 Sunnydale. The officers pulled into the lot and drove directly towards these individuals. When the vehicle came to a stop, the three males appeared startled. Appellant was one of the three men. The area was illuminated by streetlights, a light affixed to the building, and the patrol cars headlights.

As Parker and Ali exited the vehicle, Parker observed appellant and the two others walk towards the front of the building. He noticed appellant take something out of his right front pants pocket and throw it to the ground. Appellant then sat within one to two feet of the dropped object. Parker was unable to inspect the object because Ali had left to contact a fourth individual, leaving him alone with the three suspects. Parker detained the three until backup arrived. While waiting for backup, Parker asked appellant what he had dropped. Appellant responded that he had been eating sunflower seeds and pulled the seeds out of the right pocket of his sweatshirt.

Once backup arrived, four or five minutes later, Parker walked to a grassy, dirt area in front of the building where appellant had discarded the object and retrieved a plastic baggie with off-white rocks of suspected cocaine. Parker looked briefly around the immediate area and saw no other items or contraband. No one else had been in the area while Parker had detained the appellant and the other men.

Parker placed the baggie of off-white rocks into an evidence envelope, wrote his initials and star number on the envelope, and deposited the envelope into the San Francisco Police Department Crime Lab narcotics drop. Stephanie Pagano received this evidence envelope on August 14, 2006, and tested the contents. The parties stipulated that the off-white substance tested positive for 0.62 grams of cocaine base, a usable amount. The parties also stipulated that Officer Wibsin retrieved suspected marijuana from appellant, and that this substance was also tested by Pagano. It tested positive for marijuana, a usable amount. Officer Ali was qualified as an expert on possession of crack cocaine for sale and expressed his opinion that the cocaine dropped by appellant was possessed for sale.

Appellant testified that he had been at a birthday party at his grandmothers residence at 1569 Sunnydale. After leaving his grandmothers house, he walked across the lawn to talk to his grandmothers neighbor, Carrie Manuel. Manuel operates a candy house. Appellant called up to Manuel, who was at her second-story window, to buy some sunflower seeds. She threw the seeds down to him, and he put them in his right jeans pocket. He immediately started eating them while spitting the shells into his left hand and tossing them onto the ground where he was standing. After he bought the seeds, appellant walked to the lot where his mothers car was parked to wait for her. He stood in a grassy area near the parking lot while the two other males were on the stoop.

According to appellant, when the officers arrived, Parker grabbed him and placed him in handcuffs. After handcuffing appellant, Parker picked up an object from the grassy area. Appellant testified that there was debris in the area that evening and this same area was usually littered with debris and trash including pieces of paper and chip bags. Although appellant admitted possessing marijuana in his pants pocket, he denied possessing or discarding any cocaine.

Carrie Manuel testified that she did sell sunflower seeds to appellant that evening from her candy house.

DISCUSSION

Appellant was represented by competent counsel throughout the proceedings.

Appellant was apprised of his right to file a supplemental brief and no additional briefing has been filed.

Appellant did not make a motion to suppress evidence pursuant to Penal Code section 1538.5 and the record does not reveal any arguable search and seizure issues to be considered. Based on Officer Parkers observations, he had reasonable suspicion to detain appellant, and upon retrieving the suspected cocaine, he had probable cause to arrest appellant for possession of a controlled substance.

Substantial evidence supports the courts findings that appellant unlawfully possessed cocaine base and marijuana.

There are no arguable evidentiary errors.

There were no errors in the disposition.

The order adjudicating appellant a ward of the court and placing him in the Log Cabin Ranch School is affirmed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Stein, J.

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