P. v. Wesp

 

 

 

 

 

 

 

Filed 6/21/13  P. v. Wesp CA4/3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE DISTRICT

 

DIVISION THREE

 

 
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THE PEOPLE,         Plaintiff and Respondent,                           v.   DONALD MITCHELL WESP,         Defendant and Appellant.

G047111            (Super. Ct. No. 12NF0103)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, H. Warren Siegel, Judge.  (Retired judge of the Orange Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.)  Affirmed.

                        Theodor S. Arnold, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        No appearance for
Plaintiff and Respondent.

*                    *                    *

 

                        A
jury found defendant Donald Mitchell Wesp guilty of href="http://www.fearnotlaw.com/">possession of methamphetamine.  In sentencing defendant, the court exercised
its discretion pursuant to Penal Code section 1385 and struck two of
defendant’s prior felony convictions. 
The total sentence imposed by the court is five years in state
prison. 

                        We appointed href="http://www.mcmillanlaw.com/">counsel to represent defendant on
appeal.  Counsel filed a brief which set
forth the facts of the case.  Counsel did
not argue against the client, but advised the court no issues were found to
argue on defendant’s behalf.  (>People v. Wende (1979) 25 Cal.3d
436.)  Counsel did state there was a
potential issue regarding whether the police officer’s testimony and the
evidence he seized should have been suppressed.

                        Defendant was given 30
days to file written argument in defendant’s own behalf.  We received a handwritten document from
defendant in which he lists various legal issues such as “filing false police
reports,” “fabricating evidence” or “false arrest.”  Taken as a whole, the document appears to
accuse defendant’s trial lawyer of incompetence since there are various
notations about “frivolous motions to suppress,” “fabricating evidence with
prosecutor,” “she would not do as told she would not mention anything about
evidence that would defend me nothing” and “using a pack of sugar to mislead
the jury an stating I had a prior. 
Misleading the jury.”

                        Prior to trial in this
case, the court conducted a motion to
suppress evidence.  Fullerton Police
Officer Kevin Kirkreit testified he was patrolling a high crime area around the
parking lot of a motel on Raymond Street
in Fullerton on January 9, 2012 with another officer
when he made contact with defendant. 
Kirkreit asked defendant how he was doing, and then Kirkreit and defendant
conversed.  Kirkreit asked defendant
whether he would mind being searched for weapons or drugs, and defendant said
he did not mind.  Kirkreit found .1 gram
of methamphetamine on defendant’s person, an amount the officer said was
useable. 

                        The question of the
voluntariness of a consent to search is to be determined in the first instance
by the trier of fact.  “‘“The power to
judge credibility of witnesses,
resolve conflicts in testimony, weigh evidence and draw factual inferences, is
vested in the trial court.  On appeal all
presumptions favor proper exercise of that power, and the trial court’s
findings—whether express or implied—must be upheld if supported by substantial
evidence.”  [Citation.]’  [Citations.]” 
(People v. Siripongs (1988) 45
Cal.3d 548, 566-567.)  “In determining
whether, on the facts so found, the search or seizure was reasonable under the
Fourth Amendment, we exercise our independent judgment.  [Citations.]” 
(People v. Glaser (1995) 11
Cal.4th 354, 362.)

                        The trial court denied
the motion to suppress.  We conclude
substantial evidence supports the trial court’s finding that consent to search
was freely and voluntarily given.

                        To establish a claim of
ineffective assistance of counsel, a defendant must establish both counsel’s
representation fell below an objective standard of reasonableness and it is
reasonably probable that, but for counsel’s error, the result of the proceeding
would have been different.  (>Strickland v. Washington (1984) 466 U.S.
668, 686-688.)  Here we have combed the
record and note defense counsel raised appropriate legal issues to the court,
more than adequately cross-examined witnesses and presented competent
arguments.   Under the circumstances we
find in this record, we cannot conclude defense counsel was ineffective in
representing defendant. 

                        The judgment is
affirmed.

 

                                                                                   

                                                                                    MOORE,
J.

WE CONCUR:

 

 

 

BEDSWORTH,
ACTING P. J.

 

 

 

IKOLA, J.