P. v. Gilchrist
Filed 5/25/10 P. v. Gilchrist CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, Plaintiff and Respondent, v. XAVIER GILCHRIST, Defendant and Appellant. | B216921 (Los Angeles County Super. Ct. No. TA103433) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur M. Lew, Judge. Appeal dismissed.
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________________
On October 29, 2008, the Los Angeles County Sheriffs Department searched a home belonging to the family of defendant Xavier Gilchrist pursuant to a warrant. Defendant exited the house as the deputies arrived. Inside the garage the deputies found several immature marijuana plants, a hydroponic growing system, and drying marijuana plants. There were two fully-grown marijuana plants growing in an outdoor area between the house and the garage. A glass jar containing 7.59 grams of marijuana was recovered from defendants car. The deputies seized approximately $1,200 in cash from the master bedroom of the residence, and defendant told a deputy that he stayed in that bedroom. Defendants father lived in the house, while defendant, his 13-year-old sister, and his mother stayed there off and on. Defendant was charged with cultivating marijuana and possessing marijuana for the purpose of sale.
On April 21, 2009, defendant entered a negotiated guilty plea to possession of more than 28.5 grams of marijuana, a misdemeanor. In conformity with the plea agreement, the trial court deferred entry of judgment for 18 months.
One week after his plea, defendant filed a motion for return of the cash seized from his residence. Although defendant had not challenged the legality of the search, his motion relied upon Penal Code section 1538.5. At the hearing on the motion, the prosecutor informed the court that asset forfeiture proceedings had not been commenced but argued that the money should not be returned because it came from the sale of marijuana grown at the home. The parties stipulated that defendant would be deemed to have testified that $1,400 of the cash seized from the residence belonged to him. The court denied the motion, citing a conflict in the evidence in that the police seized $1,200 and defendant claimed $1,400 was his but denied ownership of contraband in the room. (Nothing in the record indicates that any contraband was found in the bedroom.)
Defendant filed a timely appeal limited to the denial of the motion to return the cash. We appointed counsel to represent defendant on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. On February 11, 2010, we advised defendant he had 30 days within which to personally submit any contentions or issues he wished us to consider. To date, we have received no response.
Neither an order granting deferred entry of judgment nor an order denying a motion for return of property is appealable. (People v. Mazurette (2001) 24 Cal.4th 789, 796; People v. Hopkins (2009) 171 Cal.App.4th, 305, 308.)
We have examined the entire record and are satisfied that defendants attorney has fully complied with his responsibilities and that no arguable, appealable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109110; Peoplev. Wende (1979) 25 Cal.3d 436, 441.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
CHANEY, J.
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