J. v. James

Filed 4/19/07 J. v. James 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Michael A. Tynan, Judge. Affirmed.

Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Jonathan Allen James (James) appeals the judgment (order revoking probation) entered following his plea of guilty to the sale or transportation of cocaine base (Health & Saf. Code, 11352, subd. (a)).^[1] The trial court sentenced James to the previously suspended upper term of five years in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In an information filed on June 20, 2005, James was charged with the sale or transportation of cocaine base ( 11352, subd. (a)). At proceedings held on June 27, 2005, James pleaded guilty to the charge and the trial court sentenced him to the upper term of five years in prison, suspended the sentence and placed James on three years of formal probation.

At approximately 3:45 p.m. on July 8, 2005, police officers observed James at a known narcotics location of Jefferson [Boulevard] and 9^th Avenue.

James had been arrested at this location on three prior occasions. On July 8th, police officers stopped and searched James, recovered marijuana from his hands in plain view, and placed James under arrest.

At a hearing held on July 15, 2005, Jamess probation was revoked. A probation violation hearing was set and the Probation Department was directed to prepare and submit an updated probation report.

On September 7, 2005, James waived his right to a revocation hearing and admitted violating the terms of his probation. The trial court found James to be in violation of probation, revoked probation, then reinstated Jamess probation with numerous conditions, including that he not associate with persons believed to be or known to be narcotic or drug users, sellers or buyers . . . .

On November 7, 2005, the People filed in the trial court a request for revocation of Jamess probation. In support of the request, the People offered a

police report indicating that, once again, James had been observed standing on the sidewalk near the intersection of Jefferson Boulevard and 9^th Avenue. At approximately 3:45 p.m., an officer observed a dark green, four door car pull up and stop in front of James and another individual, a man named Martinez. After James and Martinez had a conversation, Martinez walked up to the front passenger in the vehicle. The passenger handed to Martinez some United States currency, which Martinez placed in his front pants pocket. As Martinez then walked away from the car, James approached the vehicle and engaged in a brief conversation with the passenger. James took from his pants pocket a small white rock resembling cocaine and placed it in the palm of the passengers outstretched hand, then walked away from the car and back to the sidewalk on 9^th Avenue. Chase officers followed the green car and stopped it a short distance from the 9^th Avenue and Jefferson Boulevard intersection. A search of the passenger revealed an off-white solid resembling rock cocaine in the right coin pocket of his pants. After James was observed engaging in what appeared to be other narcotics related activity, he and several other men in the area, including Martinez, were taken into custody. A Receipt for Property Taken Into Custody indicated, at the time of his arrest, James was in possession of several items of rock cocaine and fifteen dollars.

A probation violation hearing was held on March 2, 2006. Los Angeles Police Officer Irma Garcia (Garcia) testified that on November 3, 2005, she was in a concealed observation post near the intersection of 9^th Avenue and Jefferson Boulevard when she observed James and Martinez engage in the narcotics transaction with the passenger in the green car. After observing the sale, Garcia informed other officers of what she had seen and dispatched a police vehicle to follow and stop the green car. Later, one of the officers who had stopped the green car gave to Garcia the off-white solid item recovered from the passenger in the vehicle.

In the meantime, Garcia had continued to observe James from her concealed post. She watched as James walked down the street to the house located at 3110 and 3110 1/2 9^th Avenue, walked up to the front porch and joined several other individuals who were already there. With the aid of binoculars, Garcia then observed James sit down in a chair and hold up a green and white cigarette box, then hold up a razor blade. Shortly after that, a team of police officers arrived at the house, walked up to the front porch and took James and the others into custody.

After James and the others were placed under arrest, Garcia was handed a number of items to be booked into evidence, including numerous off-white rocks resembling rock cocaine, a green and white . . . cigarette box containing more off-white solids resembling cocaine, a clear sandwich bag containing many off-white rocks resembling cocaine, a razor blade, a scale, empty baggies, United States currency and green like plant matter resembling marijuana.

At the same proceeding, Los Angeles Police Officer Patrick Aluotto testified he initially saw James seated in a chair on the front porch of the house located at 3110 and 3110 1/2 9^th Avenue. As the officer approached, James swiped his hand across the 10-inch wide porch railing directly in front of him, knocking off a cigarette box. Aluotto recovered the box, as well as three individually wrapped items which looked like rock cocaine wrapped in clear cellophane, from near Jamess foot. Inside the cigarette box, Aluotto found approximately a quarter of an ounce of off-white solids resembling rock cocaine.^[2]

James testified in his defense. He stated he was on 9^th Avenue speaking to a high school friend when he saw a green car pull up and stop. An individual jumped out of the passenger side of the car, walked to the middle of the street to talk to somebody [then] walked back to the car and left. James never approached the green car and did not speak to any of its occupants.

After the green car left the area, James crossed the street and went to sit on the front porch of his aunt and uncles home located at 3110 and 3110 1/2 9^th Street. Several other people, including Jamess cousin, his uncle and the next door neighbors, were also on the porch. A number of people were watching movies on a portable DVD player and others were playing dominoes. James was talking with his uncle and drinking vodka.

Approximately one hour after James had gone to the porch, three police cars pulled up to the residence and parked, blocking the street. Approximately seven officers came onto the porch. One officer directed James to stand up next to a window, then searched and handcuffed him.

James denied seeing any drugs, a cigarette box or a razor blade on the porch. In addition, it was Jamess opinion that, based on her testimony regarding where she was located while observing the scene on the porch, Officer Garcia would not have been able to see him at all.

At proceedings held on March 27, 2006, the trial court found James in violation of probation. The court indicated the evidence [was] clear if not beyond a reasonable doubt[,] certainly by overwhelming preponderance that [James] exercised dominion and control over . . . drugs. The trial court then imposed the previously suspended upper term sentence of five years in prison. James was awarded a total of 295 days of presentence custody credit, consisting of 78 days previously served, 145 days, and 72 days of good/time work time.

James filed a timely notice of appeal on April 10, 2006.

This court appointed counsel to represent James on appeal on July 31, 2006.

CONTENTIONS

After examination of the record, Jamess appointed counsel filed an opening 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 James 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 Jamess counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)^[3]

DISPOSITION

The judgment (order revoking probation) is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P.J.

CROSKEY, J.

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

^[2] It was stipulated the off-white solids resembling rock cocaine recovered from the porch were determined to contain, in total, over 16 grams of a substance containing cocaine in the base form.

^[3] In view of the fact the upper term of five years was imposed for Jamess conviction of the sale or transportation of cocaine base in violation of section 11352, subd. (a), appointed appellate counsel could have argued the United States Supreme Courts decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] applies. However, the contention would have been without merit. By accepting the bargained for suspended sentence of five years in prison in exchange for a grant of probation, James waived any claim imposition of the upper term was improper. (See People v. Shelton (2006) 37 Cal.4th 759, 767; People v. Buttrum (2003) 30 Cal.4th 773, 783.)