P. v. Thammavong

 

 

 

 

 

 

 

 

 

 

 

Filed 11/14/13  P. v. Thammavong CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Glenn)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   CHANH THAMMAVONG,                           Defendant and Appellant.

C072107   (Super. Ct. No. 12NCR09342)

 

 

 

            Appointed
counsel for defendant Chanh Thammavong filed an href="http://www.fearnotlaw.com/">opening brief that sets forth the facts
of the case and asks this court to review the record and determine whether
there are any arguable issues on appeal. 
(People v. Wende (1979) 25 Cal.3d 436.) 
Finding no arguable error that would result in a disposition more
favorable to defendant, we affirm the judgment.

            We provide the following brief
description of the facts and procedural history of the case.  (See People
v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

            Defendant was charged with href="http://www.mcmillanlaw.com/">transportation of methamphetamine.  (Health & Saf. Code, § 11379, subd. (a).)  He waived his right to a jury trial and
submitted the matter to the court based on the following stipulated facts:  “On February 11,
2012 at
approximately 3:19 p.m. Orland Police Officer Kyle Cessna was on patrol, driving a
marked OPD police vehicle.  On Fifth St. north of Tehama St. within the City of Orland, Cessna observed an individual
riding a bicycle.  The bicyclist was
heading south on Fifth St., the same direction as Cessna was
travelling.  There is a stop sign on the
corner of Fifth and Tehama, regulating traffic on Fifth St. 
Officer Cessna observed that the bicyclist failed to stop for [the] stop
sign, and just continued across Tehama on Fifth.  The bicyclist then cut diagonally across Fifth St. and [Officer Cessna] got the
rider’s attention by honking the horn on the patrol car.  The bicyclist looked back at the patrol car
and Officer Cessna recognized him as [defendant].  Cessna motioned for [defendant] to come to
Cessna’s location at the patrol car.  As [defendant
started] to walk toward Cessna, Cessna observed the defendant reach into his
pants pocket and then put his hands behind his back.  Cessno [sic]
could see that [defendant] was holding something in his hand, but could not tell
what it was.  Cessna started to walk
toward the defendant and saw the defendant drop what appeared to be a pack of
gum and start to walk toward Cessna. 
Cessna felt that the defendant was trying to conceal something by his
actions; he decided to detain [defendant]. 
[Defendant] was handcuffed and
asked to sit on the curb.  Cessna picked
up the packet of gum that defendant had dropped.  Cessna opened the pack and [saw] some white
tissue paper.  Inside the tissue paper
was a piece of white plastic [] tied with a knot.  Inside the knotted piece of plastic was a
white crystalline substance, which Cessna believed was methamphetamine.  [Defendant] was arrested and the white
plastic and its contents were seized.

            “Officer Cessna, later in the day on
June 29, weighed and tested the white crystalline substance.  It tested presumptively positive for
methamphetamine and weighed out to approximately .2 grams, net weight.  Subsequent laboratory testing confirmed that
the substance was methamphetamine. 
Senior Criminalist Kirsten Wallace of the California Department of
Justice, Chico Laboratory tested the substance and verified that it was
methamphetamine.  The net weight of the
methamphetamine submitted to the crime lab was .10 grams.  Both Officer Cessna and Criminalist Wallace
would offer an opinion, based upon training and experience, that .10 grams of
methamphetamine is a ‘usable amount’ of the drug.”

            The trial court found defendant
guilty of transportation of methamphetamine, suspended imposition of sentence,
and placed defendant on probation on the condition he serve 10 days with credit
for time served.  The trial court also
imposed various fines and fees, including a $200 penal fine and a $240
restitution fine. 

            Defendant appeals.  He did not obtain a href="http://www.mcmillanlaw.com/">certificate of probable cause.  (Pen. Code, § 1237.5.) 

            Defendant was advised by
counsel of the right to file a
supplemental brief within 30 days of the date of filing of the opening
brief.  More than 30 days elapsed, and we
received no communication from defendant. 
Having undertaken an examination of the entire record, we find no
arguable error that would result in a disposition more favorable to
defendant. 

DISPOSITION

            The
judgment is affirmed.

 

                                                                                                    RAYE                     , P. J.

 

We concur:

 

 

 

               ROBIE                     ,
J.

 

 

 

               HOCH                     ,
J.