P. v. Butler

Filed 5/22/06 P. v. Butler CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Michael Butler pleaded guilty to one count of possessing cocaine base for sale (Health & Saf. Code, §11351.5) and admitted having suffered one prior serious felony conviction within the meaning of Penal Code section 1170.12. Defendant entered his plea in exchange for a promise of eight years in prison and dismissal of additional prior conviction allegations contained in the information. The trial court dismissed the allegations and sentenced defendant to the agreed-upon eight years.

We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf. Defendant has submitted a brief, which this court has read and considered.

Facts

On December 7, 2004, Seaside police officers were conducting surveillance of defendant's residence. The officers were familiar with defendant and knew he was a parolee, having been released from jail only about a month earlier. Officer Juan Cruz-Gonzalez contacted defendant's parole officer earlier in the afternoon and obtained his approval to conduct a parole search of defendant, his residence and his vehicle. When defendant left the house by car, officers followed and stopped him. They accompanied defendant back to his residence where they found, among other indicia of drug sales, 40.62 grams of cocaine base in a small refrigerator in defendant's bedroom.

Discussion

Defendant argues that the arresting officers had no probable cause to commence the search that lead to his arrest. We reject the argument because the officers knew defendant was on parole at the time of the search and that they had obtained the parole officer's authorization for the search prior to contacting defendant. Under People v. Reyes (1998) 19 Cal.4th 743, 753-754, reasonable suspicion of criminal activity or a parole violation is not required for a constitutionally valid parole search as long as the search is not arbitrary, capricious or harassing. Since there is no indication that the instant search was arbitrary, capricious, or harassing, we conclude that the search was valid under Reyes.[1]

Defendant also argues that the officers went into his residence without knocking or giving notice to the occupants of the house. The â€