P. v. Sanchez
Filed 10/1/13 P. v. Sanchez CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
IRVIN SANCHEZ,
Defendant and Appellant.
B246893
(Los Angeles
County
Super. Ct.
No. VA118337)
APPEAL from
a judgment of the Superior Court
of
County. Philip H.
Hickok, Judge. Affirmed.
Richard L.
Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
______
An amended information, filed on August 9, 2012 and further amended by
interlineation on January 14, 2013,
charged Irvin Sanchez with two counts of willful, deliberate and premeditated
attempted murder (Pen. Code, §§ 664, 187, subd. (a))
(counts 1 and 2) and one count of shooting
at an occupied motor vehicle (§ 246) (count 3) and contained criminal
street gang allegations pursuant to section 186.22, subdivision (b)(1)(A),
(b)(1)(C) and (b)(4), and firearm use allegations under section 12022.5,
subdivision (a), and 12022.53, subdivisions (b), (c) and (e)(1). Sanchez pleaded not guilty to the charges and
denied the special allegations.
Before
trial, Sanchez withdrew his not guilty plea and entered a no contest plea to
the attempted murder in count 1, without the willful, deliberate and
premeditated allegation. He also
admitted attendant to count 1 a criminal
street gang allegation under section 186.22, subdivision (b)(1)(A),
and a firearm use allegation pursuant to section 12022.5, subdivision (a). The trial court found Sanchez guilty of
attempted murder and the admitted special allegations to be true. In accordance with the terms of the plea
agreement, the court sentenced Sanchez to a state prison term of 18 years,
consisting of the low term of five years for the attempted murder in count 1,
plus the middle term of three years for the criminal street gang allegation
under section 186.22, subdivision (b)(1)(A), and the high term of 10 years for
the firearm use allegation pursuant to section 12022.5, subdivision (a). On the People’s motion, the court dismissed
all remaining counts and special allegations.
Sanchez
filed a notice of appeal, indicating that his appeal was based on the noncertificate
issue of the denial of his motion to suppress pursuant to section 1538.5. (See People
v. Mendez (1999) 19 Cal.4th 1084, 1088 [“questions involving a search or
seizure whose lawfulness was contested pursuant to section 1538.5†are
noncertificate issues reviewable on appeal after a guilty or no contest plea
without defendant’s obtaining a certificate of probable cause].) We appointed counsel to represent Sanchez on
appeal. After examining the record,
counsel filed a Wende brief raising
no issues on appeal and requesting that we independently review the
record. (People v. Wende (1979) 25 Cal.3d 436.) On July 11, 2013, we directed counsel to immediately send the
record on this appeal and a copy of the opening brief to Sanchez and notified
Sanchez that he had
30 days to submit by letter or brief any ground of appeal, contention or
argument he wished us to consider. We
did not receive a response.
We have reviewed the
entire record on appeal. We note that
the trial court denied Sanchez’s section 1538.5 motion to suppress evidence of
the gun that was found in a car in which Sanchez was driving and Sanchez’s
statements regarding the gun, stating that “[i]n this case you have a situation
where a deputy sheriff makes an observation while he’s on patrol. He’s got to be able to articulate
specifically what caused his action there.
He said he smelled the odor of marijuana. Whether it’s 6 feet or 12 feet away, he said
that he smelled the odor of marijuana.
Pursuant to that he stops his patrol car behind the Sanchez car. He walks up there. The gun is not drawn. Lights, according to him, lights aren’t
on. And so he is investigating. He’s making an inquiry. At that point in time it’s still a consensual
stop. When [Sanchez] happens to mention
that [he and the passengers in his car] had been smoking weed, at that point in
time it rises to more than just a consensual stop. At that point in time it authorizes the
deputy to take further action. Then he
has reasonable grounds to detain [Sanchez], and the other[s] . . . in the car, also. For his safety, he puts them in the back of
his patrol car. He does that and calls
for backup. Backup arrives, and the
backup then, after being explained the reasons for the detention, has the right
to go ahead and search for the contraband.
And in the process of the search we found out from this deputy that it’s
common for contraband to be hidden in various compartments in the car. Center console included. Having that in the back of his mind, and
seeing the console was offset or loose, that would also further his suspicions
that there’s something in there. He
slides it back, sees the butt of a gun.
I don’t think there’s any problem justifying that limited
search.†Given these findings, the court
did not err in denying the motion to suppress. (People
v. Valenzuela (1999) 74 Cal.App.4th 1202, 1206-1207 [“In reviewing the
denial of [a motion to suppress evidence], we must view the record in the light
most favorable to respondent [citation], uphold all express and implied factual
findings of the trial court that are supported by
apply the proper federal constitutional standards to those facts
[citations]â€].)
Based on our analysis of
the record, we are satisfied that Sanchez’s counsel
has fully complied with his responsibilities and that no arguable
appellate issue exists. (
106, 110.)
DISPOSITION
The
judgment is affirmed.
NOT TO
BE PUBLISHED.
ROTHSCHILD,
Acting P. J.
We concur:
CHANEY,
J.
JOHNSON,
J.
name="_ftn1" title="">[1] Statutory references are to the Penal Code.
