P. v. Baughman
Filed 11/6/13 P. v. Baughman
CA2/2
NOT TO BE PUBLISHED IN THE
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CURT MARTIN BAUGHMAN,
Defendant and Appellant.
B245231
(Los Angeles
County
Super. Ct.
No. VA122356)
THE COURT:
Defendant and appellant Curt
Martin Baughman (defendant) appeals his judgment of conviction of
to People v. Wende (1979) 25 Cal.3d
436 (Wende), raising no issues. On July
31, 2013, we notified defendant of his counsel’s brief and gave him
leave to file, within 30 days, his own brief or letter stating any grounds or
argument he might wish to have considered.
Defendant filed a letter on September
11, 2013, setting forth issues to be considered in this
appeal. We have reviewed the entire
record and have considered the points made by defendant in his letter
brief. Finding no error or other
arguable issues, we affirm the judgment.
Defendant was charged
with possession of methamphetamine for the purpose of sale, in violation of
Health and Safety Code section 11378 (count 1), and cultivating marijuana in
violation of Health and Safety Code section 11358 (count 4).
count 1, the information further alleged a 1989 conviction of Health and Safety
Code section 11379 (selling or transporting a controlled substance). After the preliminary hearing, the trial court
denied defendant’s motion to dismiss the charges pursuant to Penal Code section
995. A jury convicted defendant of count
1 as charged and acquitted him of count 4. Defendant waived a jury trial on the prior conviction
allegation and after a bench trial it was found to be true. On November
14, 2012, the trial court struck the prior conviction pursuant to Penal
Code section 1385 and sentenced defendant to the upper term of three years in
prison, to be served in the county jail. The court awarded 30 days of custody credit,
later corrected to 36 days, comprised of 18 actual days and 18 days of conduct
credit, and ordered defendant to pay mandatory fines and fees. Defendant filed a timely notice of appeal.
The
evidence at trial showed that while searching defendant’s home pursuant to a
search warrant, Long Beach police
officers found a bag on defendant’s person, containing methamphetamine and approximately
$427 in cash. After defendant was
advised of his Miranda rights,
and told them he intended to sell it to close friends. Officers also found a digital scale with white
residue on it, a plastic pill bottle and three plastic bags containing marijuana,
as well as new identical plastic bags. In
the garage, officers found a large, budding marijuana plant. The prosecution’s narcotics sales expert,
Detective Luis Rodriguez, testified that in his opinion both the
methamphetamine and the marijuana were possessed for the purpose of sale. Detective Rodriguez also testified that defendant
had admitted that he possessed the methamphetamine for purposes of sale as well
as for his own use.
In
his letter to the court, defendant represents that prior to trial his attorney
told him she would file a motion challenging the validity of the search warrant.
However, on October 26, 2012, she informed defendant that
the warrant was good and any such motion would be frivolous. Defendant contends the affidavit supporting
the search warrant falsely claimed reliance on a confidential informant, that
he was innocent of the charges, that his attorney lied to him, and that she
failed to prepare a defense. As
defendant’s representations concern matters outside the record, any claim of
ineffective assistance of counsel based upon defense counsel’s failure to
challenge the search warrant would be more appropriately made in a habeas
corpus proceeding. (See
Cal.4th 264, 266-267.)
Defendant also represents
that he requested a continuance in order to obtain private counsel and that
denial of his request forced him to go to trial without a proper defense while represented
by an attorney who had lied to him. The
record reflects that all attorneys announced ready for trial a few days before
defendant made the request for continuance on October 29, 2012, at the time set for jury selection. Defendant requested a continuance a few
minutes before the arrival of his attorney and the trial court waited until
counsel arrived. When informed of
defendant’s request, defendant’s trial counsel asserted defendant’s due process
right to counsel of his choice. The
trial court denied the motion as untimely. The jury was then selected, the trial followed,
and verdicts were entered two days later. We conclude the trial court acted within its
discretion to deny the continuance and the request for private counsel. (See People
v. Molina (1977) 74 Cal.App.3d 544, 548.)
We have examined the
entire record and are satisfied that defendant’s appellate counsel has fully
complied with his responsibilities and that no other arguable issue
exists. We conclude that defendant 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, 123-124.)
The
judgment is affirmed.
NOT TO BE PUBLISHED IN
THE OFFICIAL REPORTS.
†Judge of the Los Angeles Superior
Court, assigned by the Chief Justice
pursuant to article VI,
section 6 of the California Constitution.
