P. v. Renteria

Filed 8/25/06 P. v. Renteria CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Antonio Renteria appeals from a judgment and sentence after conviction by a jury of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), possession of a smoking device in violation of Health and Safety Code section 11364, and possession of burglar's tools in violation of Penal Code section 466. The court found true prior prison term allegations under Penal Code section 667.5, subdivision (b), and probation ineligibility allegations under Penal Code section 1203. Defendant was sentenced to the lower term of 16 months for possession of methamphetamine, and a consecutive one-year term for a prior prison term enhancement.

Defendant's counsel filed an opening brief that raises no issues and asks this court for an independent review under People v. Wende (1979) 25 Cal.3d 436. We reviewed the record on appeal and find that there are no meritorious issues to be briefed or argued.

Background

On June 9, 2005 at 10:40 p.m., a Napa County deputy sheriff, in a parked car in a dark area of Highway 29, saw defendant dressed in black clothing walk by several closed businesses that had a history of thefts and burglaries. The deputy sheriff contacted defendant and saw he was carrying a 12 to 14-inch metal flashlight under his arm. Defendant said that he had been at some nearby storage units, left to get a drink and was returning to the storage units to be picked up by a girlfriend. The deputy asked if he could search defendant who consented and raised his arms. The deputy found a small glass vial of suspected methamphetamine in a fanny pack and two glass pipes used to smoke methamphetamine. He arrested defendant. A further search revealed a small flashlight, a metal file, three small screw drivers, pliers, a metal pry tool, and a pointer with a magnet tip. The deputy recognized the tools as the type used for burglaries.

Discussion

Defense counsel prepared a motion to suppress under Penal Code section 1538.5 that was heard in the absence of the in-custody defendant who would not come to court. The motion had been previously continued. Defense counsel sought to withdraw the motion. He explained that defendant was considering a Marsden motion and possible retention of private counsel. (People v. Marsden (1970) 2 Cal.3d 118.) The court denied the motion subject to reconsideration.

The record does not indicate that defendant ever pursued a Marsden motion. The case proceeded through trial without any complaints by defendant about defense counsel.

The record contains the testimony of the deputy sheriff at trial concerning the circumstances of his contact, detention, arrest, and search of the defendant. The totality of the circumstances more than justified the temporary detention. The search was consensual and led to the discovery of the methamphetamine and pipes, and subsequent arrest. The search incident to the arrest revealed the burglary tools. Even if the hearing on the motion to suppress were procedurally defective, the defendant was not prejudiced. There was no basis to suppress the evidence.

Competent counsel represented defendant at all stages of the proceedings. Substantial evidence supports the jury's verdict. There was no error in the sentencing proceedings or the sentence imposed.

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

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Swager, J.

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Margulies, J.

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