P. v. Goldstein










Filed 3/27/17 P. v. Goldstein CA1/2






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,
Plaintiff and Respondent,
v.
DARRYL LEE GOLDSTEIN,
Defendant and Appellant.


A148754

(San Mateo County
Super. Ct. No. 15SF000451)


Appellant Darryl Lee Goldstein appeals from a judgment entered upon his plea of no contest, challenging the denial of his motion to suppress. His appeal is authorized by Penal Code section 1538.5, subdivision (m).[1]
On July 25 and August 10, 2016, respectively, appellant filed a “Request for Court’s Assistance (Law Library Pro Per Use)” and a request to represent himself in propria persona. Those requests were denied on October 7, 2016.
Appellant’s court appointed counsel 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. Counsel has advised appellant that he may personally file a supplemental brief raising any issues he wishes to call to the court’s attention, but appellant has filed no such brief.

STATEMENT OF THE CASE
On November 16, 2015, the San Mateo County District Attorney filed a complaint charging appellant with a single count of felony possession of heroin.[2] (Health & Saf. Code, § 11350, subd. (a).) After a preliminary hearing, at which appellant was held to answer the charge, the People filed an information reiterating the charge of drug possession and further alleging seven prior strike and serious felony convictions and six prior prison terms. (§§ 667, subd. (a)(b)-(j); 667.5, subd. (b); 1170.12, subd. (b).)
On January 6, 2016,[3] appellant moved to suppress evidence on the grounds he was illegally detained and searched. After a hearing on March 4, the motion was denied on the court’s findings that there had been a report of a crime, appellant matched the description of the suspect, there was probable cause to detain him, and he validly consented to the search.
On March 28, appellant entered a plea of no contest to the charge of possession of heroin and admitted one of the alleged prior convictions. The remaining allegations were dismissed.
On April 15, appellant asked the court to strike the prior conviction. The People opposed the motion but, on May 27, the court struck the prior conviction and sentenced appellant to the mid-term of two years for the heroin possession. Appellant was awarded a total 373 days of presentence custody, and the court imposed applicable fines and fees. Notice of Appeal was timely filed on July 6.
STATEMENT OF FACTS
Sergeant Ted Henson testified at the suppression hearing that he was on patrol around 11:00 p.m., assisting Sergeant Dan Smith in searching for an African-American male in dark clothing, carrying a backpack, in the area of a Safeway store near Winslow Street and a transit station. Smith had been flagged by the manager of the store, who wanted him to conduct a welfare check on a person who had been in the store. The manager believed the person was responsible for thefts from the store in the past. While she did not want him prosecuted, she asked the officers to serve him with a trespass notice to discourage him from entering the store in the future.
Henson detained appellant, who matched the description given by the manager, about 100 yards from the store, and he was identified by the manager as the person who had been in the store. Appellant appeared disoriented but he was cooperative. Henson ran a records check on appellant and Officer Daniel Valencia, who had been dispatched to the store, asked appellant for consent to search his backpack. The record check revealed that appellant was on probation with search conditions and also on parole. Appellant admitted he had been in the store but denied he had stolen anything. He also told the officers that nothing illegal was in the backpack and told Valencia to “go ahead” and search it after he asked for consent to search.
Officer Valencia found a syringe in the backpack that contained a dark liquid he believed was heroin. Appellant confirmed it was heroin and the substance later tested positive for heroin. Henson estimated that the entire detention consumed 20 minutes at most. Appellant was cited for possession of heroin and also given a trespass notice.
DISCUSSION
As indicated, the denial of appellant’s motion to suppress is reviewable by this court notwithstanding appellant’s subsequent plea of no contest to the charge of possession of heroin. (§ 1538.5, subd. (m).)
Appellant’s detention was reasonable. There was clearly probable cause to detain appellant, as he fit the description given Officer Henson by Sylvia Arellano, the manager of the Safeway store, of the persons she suspected of theft from the store; namely “a black male wearing dark clothing and in possession of a backpack.” Appellant was also the only person Officer Henson saw coming out of the Winslow Street exit of the store in the area in which Arellano said the suspect would likely be found.
The search was also justified. The transcript of the suppression hearing does not clearly indicate whether the officers learned appellant was on probation and parole and subject to search conditions before they asked him to consent to search and he did so, or afterward. In any case, the testimony of the officers established that (1) appellant was subject to a personal search condition and (2) when asked by Officer Valencia whether he could search his backpack appellant said “go ahead.” At the time consent was sought and obtained, neither Henson nor Valencia had put a hand on their weapons, and appellant had not been handcuffed or intimidated in any other way.
Considering the totality of pertinent circumstances, the search was constitutionally permissible. It is not arguable that the trial court erred in denying appellant’s motion to suppress the evidence disclosed by the challenged search and seizure.
During the periods of time his plea was negotiated and entered, and his sentence considered and imposed, appellant was represented by able counsel who protected his rights and interests.
The court fully informed appellant of the consequences of his plea and the rights he would be giving up by his plea before he entered the plea, and the record shows appellant’s plea was fully informed and freely made and that there was a factual basis for the plea.
There was no sentencing error.
Accordingly, there are no legal issues that require further briefing. The judgment is affirmed.




_________________________
Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Miller, J.



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[1] All subsequent statutory references are to the Penal Code unless otherwise indicated.

[2] Appellant was alleged to have several prior convictions for sex offenses, which precluded charging the offense as a misdemeanor.

[3] All subsequent dates are in the year 2016.