THE PEOPLE v. ALBERT DURAN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ALBERT DURAN, Defendant and Appellant.

B220048

Decided: June 30, 2010

David W. German, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Albert Duran appeals the judgment entered following his conviction by jury of possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a).   We affirm.

On October 22, 2008, around 7:40 p.m., Deputy Armando Otero of the Los Angeles County Sheriff's Department received a call that a male Hispanic wearing a white shirt and blue jeans was beating up another man at a liquor store.   Otero, Deputy Robert Lopez, and Deputy Abel Jimenez responded to the call in three separate patrol cars.

When the deputies arrived, they saw appellant sitting next to the door of the liquor store.   Appellant matched the description they had received of a male Hispanic wearing a white t-shirt and blue jeans.   Otero asked appellant if he had been fighting, and appellant stated that he was arguing with a friend.   Appellant looked upset.   Otero asked appellant if he could search him for drugs or weapons, and appellant agreed.   When Otero searched appellant, he found a small plastic baggie of narcotics in appellant's right front pocket.

Otero asked appellant about the drugs, put the baggie in his own shirt pocket, and arrested appellant.   Otero thought the baggie contained methamphetamine, but it actually contained cocaine.   Lopez and Jimenez watched Otero's interaction with appellant and, after appellant was placed in Otero's patrol car, they helped look for witnesses.

An information was filed on November 24, 2008, charging appellant with one count of possession of a controlled substance, cocaine, in violation of Health and Safety Code section 11350, subdivision (a).   The information further alleged that appellant had suffered a prior conviction within the meaning of the Three Strikes law (Pen.Code, §§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) and had suffered a prior conviction and had served a prison term within the meaning of Penal Code section 667.5, subdivision (b).  Appellant pled not guilty and denied the allegations.

In January 2009, appellant filed a Pitchess motion, seeking access to the personnel records of Lopez and Otero.  (Pitchess v. Superior Court (1974) 11 Cal.3d 531.)   Following a February 2009 hearing, the court denied the request as to Deputy Lopez without prejudice but granted the request as to Deputy Otero.   Following an in camera hearing, the court found there was no material to disclose.

Appellant filed another Pitchess motion, seeking access to Lopez's personnel files.   The court granted in camera review at an April 2009 hearing.   Following in camera review, the court found there was no evidence to be disclosed regarding Lopez.

A jury trial was held.   Appellant's motion to dismiss based on the insufficiency of the evidence was denied.

Appellant testified that when Otero arrived at the liquor store, Otero asked if he could search appellant for weapons, not for drugs.   Appellant also testified that Otero did not find any drugs on him because he did not have any cocaine in his pocket and, in fact, did not use drugs.   Appellant was placed in the patrol car while the deputies investigated the battery charge.   According to appellant, Lopez approached the window of the patrol car while appellant was seated in the back seat and showed appellant the bag of drugs, saying, “ ‘Look what I found.’ ”   Appellant told Lopez that he did not have anything to do with the drugs and that they were not his.   Lopez told appellant that they would let him go if he told him his drug source, but appellant replied that he did not have a drug source.

The jury found appellant guilty.   Appellant moved to strike his prior strike pursuant to Penal Code section 1385, relying on the minor nature of the offense, the lengthy sentence that was to be imposed, appellant's minor criminal record, and his acceptance into a program for dental laboratory technicians.   The trial court granted appellant's motion to strike his prior strike, citing “the nominal amount of drugs, the circumstances of the arrest and the history of arrest, ․” The court declined to strike appellant's prior felony pursuant to Penal Code section 667.5, subdivision (b).  The court then sentenced appellant to the mid term of two years, plus an additional year pursuant to Penal Code section 667.5, subdivision (b), for a total of three years.   Appellant received credit for 42 days in actual custody and 21 days good time/work time credit, for a total of 63 days in custody credits.

Appellant timely filed a notice of appeal.   On February 18, 2010, we received a copy of a letter defense counsel sent to the trial court, requesting the trial court to adjust appellant's custody credits pursuant to the amendment to Penal Code section 4019, effective January 25, 2010.

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 April 20, 2010, 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.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

WILLHITE, Acting P.J. SUZAKAWA, J.