P. v. Brown

Filed 4/20/07 P. v. Brown CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Ann I. Jones, Judge. Affirmed.

Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Kashaad Brown (Brown) appeals the judgment (order revoking probation) entered following his plea of no contest to possession of cocaine base for sale (Health & Saf. Code, 11351.5).^[1] The trial court sentenced Brown to a term of three years in state prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts^[2]

At approximately 5:15 p.m. on July 7, 2005, Los Angeles Police Officer Fabiola Ledesma (Ledesma) and a fellow officer, Tapia, were observing the area surrounding the intersection of Fifth and Crocker Streets from the second story of a building there.^[3] Through their binoculars, the officers saw Brown sitting on a milk crate approximately 50  feet away. As the officers watched, a man approached Brown, engaged him in conversation, then handed to Brown what appeared to be United States currency. After accepting the money, Brown brought his right hand up in front of him and exposed a clear plastic bindle with off-white solids that . . . appeared to be rock cocaine. Brown handed to the man one of the off-white solids. Approximately five minutes later, a second man approached Brown, who was still seated on the milk crate. The man gave Brown money, which Brown placed in his left front pants pocket. Brown then produced the bindle, took out a single off-white solid and gave it to the man.

After the second transaction, Brown got up, picked up the milk crate and rapidly walked east on Fifth Street. Ledesma and Tapia lost sight of Brown for a few seconds before a backup team of officers detained him.

After Brown had been taken into custody, Ledesma left his post in the building and returned to the police station. There, he identified Brown as the man he had seen engage in the narcotics transactions.

A search of Brown revealed $378, which he had placed in various pockets of his clothing, and a clear plastic bindle with numerous off-white solids from Browns buttocks area.

Ledesma, who had testified on numerous occasions as an expert on possession for sales of . . . cocaine base as well as other controlled substances, was of the opinion Brown possessed the cocaine for the purpose of sale. Ledesma based this conclusion on the following factors: 1) the area in which Brown had placed himself is known for the sale of narcotics, 2) the $378 found in Browns possession was comprised of miscellaneous denominations, 3) the hand-to-hand transactions in which Brown engaged were indicative of the sale of narcotics, 4) numerous off-white solids were recovered from Brown, and 5) the off-white solids recovered from Brown appeared to have been pre-cut into certain sizes.

It was stipulated, for purposes of the preliminary hearing only, that a chemical analysis of the off-white solids recovered from Brown consisted of 2.56 grams net weight of cocaine in the form of cocaine base.

2. Procedural History.

On August 8, 2005, Brown was charged by information with one count of the sale or transportation of cocaine base ( 11352, subd. (a)) and one count of possession of cocaine base for sale ( 11351.5).

At proceedings held on August 8, 2005, the prosecutor indicated the parties had agreed upon a disposition of the case. Brown was to plead guilty to count two of the information, possession of cocaine base for sale. In exchange, the allegation he sold or transported cocaine base in violation of section 11352, subdivision (a) would be dismissed and he would be placed on probation for a period of three years. The trial court approved the disposition and, after Brown was advised of his right to a jury trial, his right to be represented by counsel, his right to confront and cross-examine the witnesses against him, his right to subpoena witnesses and present a defense, and his right against self-incrimination, Brown pleaded no contest to possessing cocaine base for sale in violation of section 11351.5. The trial court then suspended imposition of sentence and placed Brown on formal probation for a period of three years under certain conditions, including that he not . . . use or possess any narcotics, dangerous or restricted drugs or associated paraphernalia . . . . and that he stay away from places where drug users, buyers, or sellers congregate. The trial court dismissed the count alleging Brown sold or transported cocaine base, then awarded Brown presentence custody credit for 49 days, consisting of 33 days actually served and 16 days of good time/work time.

On November 4, 2005, the People filed a Motion Requesting Revocation of [Browns] Probation. In the motion it was asserted a new case had been filed against Brown alleging he possessed a controlled substance, rock cocaine, in violation of section 11350, subdivision (a), possessed more than 28.5 grams of marijuana in violation of section 11357, subdivision (b), and possessed narcotics paraphernalia, a glass pipe with copper mesh used to smoke cocaine base, in violation of section 11364.

At proceedings held on November 14, 2005, the trial court found Brown in violation of probation based on the disposition in the new case filed against him. The trial court revoked Browns probation, then reinstated probation under the same terms and conditions as previously ordered.

The People filed a second request for revocation of Browns probation on January 27, 2006, asserting Brown had violated his probation by possessing cocaine base for sale in violation of section 11351.5.^[4] At a hearing held on the same date, the trial court revoked Browns probation and set a date for a probation violation hearing.

At a hearing held on April 19, 2006, Brown made a motion to relieve his counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). After hearing remarks from both Brown and his counsel, the trial court granted the Marsden motion, relieved the Office of the Public Defender and informed the Office of the Alternate Public Defender that it was to appear on Browns behalf at the next court date. However, on April 20, 2006, the trial court reconsidered its ruling. After the Public Defender Department presented authority establishing that no conflict can be legally found for counsels refusal to file a motion pursuant to section 170.6 of the Code of Civil Procedure, which prohibits a judge from presiding over the trial of a matter when it is established the judge is prejudiced against any of the parties to the proceeding, the trial court reversed its ruling and re-appointed the Public Defender Department to represent Brown. Brown, in turn, withdrew his Marsden motion.

A probation revocation hearing was held on May 23, 2006. Los Angeles County Deputy Probation Officer Ray Albridge (Albridge) testified he reviewed the file for Brown, then interviewed Brown on April 10, 2006, at the Wayside Jail. According to Albridge, Brown had last reported to his probation officer on October 3, 2005. After hearing argument by defense counsel, the trial court concluded the People had established by a preponderance of the evidence Brown violated his probation by failing to report to his probation officer as ordered. The trial court then permanently revoked Browns probation and sentenced him to the low term of three years in prison for his August 8, 2005, conviction of possession of cocaine base for sale in violation of section 11351.5. Brown was awarded presentence custody credit for a total of 225 days consisting of 167 days actually served and 58 days of good time/work time.

Brown filed a timely notice of appeal on May 23, 2006.

This court appointed counsel to represent Brown on appeal on August 3, 2006.

CONTENTIONS

Appointed appellate counsel sought and obtained an order increasing Browns presentence custody credits from 225 days to 241 days, then filed a brief which raised no issues and requested this court to conduct an independent review of the record. By notice dated March 6, 2007, the clerk of this court advised Brown to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.

APPELLATE REVIEW

We have examined the entire record and are satisfied Browns counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment (order revoking probation) is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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^[1] All further statutory references are to the Health and Safety Code unless otherwise indicated.

^[2] The facts have been taken from the transcript of the preliminary hearing.

^[3] When defense counsel asked Ledesma to disclose the address of the building, Ledesma refused, indicating that to disclose the information would not only compromise future investigations but would jeopardize the safety of the individuals who had allowed police officers to use the building as an observation site. When defense counsel asked the trial court to hold an Evidence Code section 402 hearing on the matter, the court declined stating, for the purpose of the preliminary hearing only, there was no need for an in camera hearing in view of the information already provided.

^[4] The January 2006 case charging Brown with violating section 11351.5 was ultimately dismissed after the trial court granted Browns motion to suppress evidence pursuant to Penal Code section 1538.5.