P. v. Price

Filed 2/22/07  P. v. Price CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Kern County.  Lee P. Felice, Judge.

            Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French,  Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

            On June 16, 2006, appellant, Richard Price, entered a plea of no contest to possession of a controlled substance (Health & Saf. Code, §  11377, subd. (a)) after the trial court denied his motion to suppress evidence filed pursuant to Penal Code, section 1538.5.^[1]  Price waived drug treatment probation pursuant to Proposition 36 (§  1210.1).^[2]  Price requested immediate sentencing, waiving his right to have a probation report prepared.  The court sentenced Price to prison for 16 months, imposed a restitution fine, and granted applicable custody credits.

FACTS

            The facts adduced at the section 1538.5 hearing were that on April 1, 2006, Kern County Sheriff's Department Deputy Corey Pierce was dispatched to the scene of an alleged assault with a knife.  The suspect was identified as Leta Spencer.  Pierce was told she was on her way to 204 Polk Street. 

            When Pierce arrived at 204 Polk Street, Price was standing on the other side of a backyard fence two feet from Spencer.  Pierce entered the backyard from the driveway and ordered Price and Spencer to put their hands on their heads for officer safety.  Price and Spencer complied with the order.  Another deputy took Spencer into custody without incident. 

            At the same time, or seconds later, Pierce asked Price if he was carrying any weapon.  Price replied he had a knife in his back pocket.  Pierce saw a black object in appellant's back pocket that was difficult to discern due to low lighting.  Pierce removed the object which turned out to be a small, open vinyl pouch that contained several syringes.^[3]

DISCUSSION

Price's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record.  (People v. Wende (1979) 25 Cal.3d 436.)  The opening brief also includes the declaration of appellate counsel indicating that Price was advised he could file his own brief with this court.  On September 28, 2006, we invited Price to submit a letter stating any grounds on appeal he would want this court to consider.  To date, he has not done so.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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^*Before Wiseman, Acting P.J., Cornell, J., and Kane, J.

^[1]           Unless otherwise noted, all statutory references are to the Penal Code.

^[2]           Price received full admonitions concerning the consequences of his plea and was fully advised of his rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.  The parties stipulated that there was a factual basis for Price's plea.

^[3]           At the preliminary hearing, Pierce testified that he arrested Price for possession of narcotics paraphernalia.  Pierce searched Price's pockets and found a bindle of a crystallized substance that proved to be methamphetamine.