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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. VINCENT SALVATORE SMITH, Defendant and Appellant.


Decided: January 21, 2010

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


Vincent Salvatore Smith appeals from the judgment entered following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5 and his no contest plea to possession of a firearm by a felon.  (Pen.Code, § 12021, subd. (a)(1).)   Pursuant to his negotiated plea, the charge of unlawful possession of ammunition (Pen.Code, § 12316, subd. (b)(1)) was dismissed.   Imposition of sentence was suspended and he was placed on formal probation for three years under certain terms and conditions, including that he serve 90 days in county jail.

The evidence at the suppression hearing, heard concurrently with the preliminary hearing, established that on May 26, 2008, at approximately 7:30 a.m., Los Angeles County Deputy Sheriff Randy Megrdle was at an apartment complex on 17th Street West in the County of Los Angeles, responding to a call of “shots fired.”   Deputy Megrdle spoke to a Ms. Riggs, who lived in the apartment complex, who stated that at approximately 7:00 a.m., she heard a shot and saw two males in a blue vehicle speed away.   Earlier that morning, Ms. Riggs had heard a lot of banging and it was the two men “banging on apartment number 24.”   The deputy recovered shotgun wadding on the grass directly in front of the apartment numbers 24, 23, 13, and 14.   The wadding appeared to be freshly fired.

Deputy Megrdle attempted to contact the occupants of each of the four apartments to determine if anyone had been injured and spoke to someone in all but apartment number 24.   The deputy was informed that the vehicle belonging to the occupant of that apartment was parked in front of the building but, when the deputy knocked loudly on the door to the apartment, no one responded.   He observed that a swastika had been sketched into the door.

The deputy was concerned that the occupant of the apartment was a victim of a crime and called for a battering ram to make entry.   He was aware that several years before, there had been a report of gunshots and that days later a dead body had been recovered in one of the apartments.   When the deputy finally entered the apartment, he found appellant lying on the bed in the bedroom.   A rifle case was inside an open closet in plain view.   The gun inside the case appeared to be in working order.   Several live shotgun rounds were recovered from inside the case.   Appellant said he was the sole occupant of the apartment.

The court denied the suppression motion, citing People v. Ray (1999) 21 Cal.4th 464, and found that the entrance into the residence was allowed under the caretaking exception to investigate whether there was a victim in need of immediate assistance.

After review of the record, appellant's court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On September 28, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.   No response has been received to date.

We have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case.   (Smith v. Robbins (2000) 528 U.S. 259, 278;  People v. Kelly (2006) 40 Cal.4th 106, 112-113.)


The judgment is affirmed.


We concur: