THE PEOPLE v. GREGORY EUGENE NICHOLS (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Gregory Eugene Nichols, also known as Gregory Nicholas, appeals from the judgment entered following his no-contest plea to possession of marijuana for sale (Health & Saf.Code, § 11359), after denial of his motion pursuant to Penal Code section 1538.5 to suppress evidence.   The trial court suspended imposition of sentence and placed appellant on three years formal probation.

The evidence adduced at the suppression hearing was as follows:  Los Angeles Police Department Officer Juan Cruz had received complaints from the owner of a residential complex on South San Pedro Street, in Los Angeles, of trespassing and narcotics activity.   The front part of the complex was a house, and in the back were apartments above garages.

On November 23, 2009, Officer Cruz was passing the complex when he saw two men standing in front of the gate with their hands in their pockets.   Officer Cruz, who was working alone, called for backup and was joined by Officer Navarro and his partner, Officer Gonzalez.   Officers Navarro and Gonzalez walked to the rear of the house, and Officer Gonzalez looked into an open window and saw appellant and another man inside.   Appellant was smoking marijuana in a bong.   Officer Gonzalez ordered the men to come out through the window with their hands up, which the men did.

The men were ordered next to a wall and handcuffed, patted down and placed in the back of the patrol car.   Officer Gonzalez asked if it was okay to search appellant's room and if he would sign a consent to search form.   Appellant agreed and was removed from the patrol car to sign the form.   After the form was signed Officers Navarro and Gonzalez entered the apartment and found a blue canvas bag containing forty-four 2 x 2 inch packages of marijuana, a bong and two “air soft” pistols.

The defense presented a different version of events.   Kemonitae Castleberry testified that he was outside of the building complex by the gate smoking a cigarette with appellant, his close friend, at 2:00 p.m. on November 23, 2009, when Officers Navarro and Gonzalez drove by.   Appellant and Castleberry went into the house, where appellant began putting marijuana into a bong.   Suddenly, the window to the bedroom that had been cracked open three to four inches, flew open.   There were three to five officers standing outside of the window with their guns drawn.   They ordered Castleberry and appellant to exit through the window, which they did.   Once outside, they were immediately handcuffed and searched.

In arguing the motion to suppress, defense counsel asserted that smoking marijuana did not constitute probable cause to detain appellant and that the consent given immediately after the illegal detention was the fruit of the illegal detention.   The trial court denied the motion to suppress.

Appellant made a Pitchess ¹ motion, seeking discovery regarding incidents of fabrication and/or dishonesty involving Officers Cruz, Gonzalez and Navarro.   The trial court granted the motion as to Officer Navarro only, concluding that it was relevant to his credibility because he had said that appellant told him that appellant sold marijuana to take care of his family, an issue central to the officer's credibility and the case.   The court found that issues relating to the credibility of the other involved officers, such as whether the window was open or the police had their guns drawn, were collateral.

After the denial of appellant's motion to suppress, he pled no contest to the charge.

We appointed counsel to represent appellant on appeal.   After examination of the record, counsel filed an “Opening Brief” in which no issues were raised.   On August 30, 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.

We have examined the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist.  (People v. Wende (1979) 25 Cal.3d 436, 441.)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

FOOTNOTES

FOOTNOTE.  

FN1. People v.Superior Court (1974) 11 Cal.3d 531 (Pitchess )..  FN1. People v.Superior Court (1974) 11 Cal.3d 531 (Pitchess ).

THE COURT: * FN*.  BOREN, P. J., DOI TODD, J., ASHMANN-GERST, J.