P. v. Ortiz

Filed 5/11/06  P. v. Ortiz CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Janet I.  Kintner, Judge.  Affirmed.

            A jury convicted Hector Ortiz of selling methamphetamine.  (Health & Saf. Code, §  11379, subd. (a).)  The court sentenced him to prison for the three-year middle term.

FACTS

            On September 28, 2004, the Drug Enforcement Agency (DEA) provided marked money in a white envelope to a confidential source so he could attempt to buy two pounds of methamphetamine.  The confidential source went to a Taco Bell in San  Ysidro and exchanged with Everado Rodriguez the money for methamphetamine.  Rodriguez then drove to Five Star Collision, an auto shop, where he met with Ortiz and Carlos Partida.  DEA agents saw Ortiz holding a white envelope.  On October 12, Ortiz was arrested after DEA agents made a second methamphetamine purchase from Rodriguez.  Officers found over $3,000 cash on Ortiz's person.  This money included $900 of the marked money used to purchase the methamphetamine on September 28.  After Ortiz was arrested, Rodriguez and Partida were arrested.  At Ortiz's trial Partida testified that he and Ortiz were partners in Five Star Collision, and Ortiz provided the methamphetamine Rodriguez sold to the DEA confidential source on September 28.

DISCUSSION

            Appointed appellate counsel has filed a brief setting forth the evidence in the superior court.  Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436.  Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues:  (1) whether the absence of Hispanics on the jury panel denied Ortiz his Sixth Amendment right to a jury selected from a cross-section of the community; and (2)  whether the trial court erred in failing to instruct the jury on the lesser included offense of simple possession of methamphetamine.

            We granted Ortiz permission to file a brief on his own behalf.  He has not responded.  A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386  U.S. 738, has disclosed no reasonably arguable appellate issue.  Competent counsel has represented Ortiz on this appeal.

DISPOSITION

            The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

  HUFFMAN, Acting P. J.

    NARES, J.

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