THE PEOPLE v. Rune Arden, Defendant and Appellant. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Rune Arden appeals from the judgment entered following his plea of no contest to possession of a destructive device (Pen.Code, § 12303).¹  The trial court suspended imposition of sentence and placed Arden on formal probation for a period of three years.   We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

1. Facts.²

On March 21, 2010, Los Angeles County Deputy Sheriff Marie Davis and her partner, Deputy Slutske, were working out of the Malibu Lost Hills Sheriff's Station.   At approximately 11:30 a.m. that day, the deputies were on patrol on Malibu Road when their automated license plate reader, or ALPR unit, indicated that there was a stolen car in the area.   The vehicle, a black Pontiac, was parked on the north curb, across from the residence at 24476 Malibu Road.

As the deputies approached the Pontiac, they realized that it was occupied.   Deputy Slutske ordered the occupant, Arden, to get out of the car.   Deputy Davis then detained and searched Arden.   Her search revealed a glass cutter in Arden's left front pants pocket.

The deputies determined that Arden was alone in the car and before they could ask him any questions, Arden spontaneously stated that “he was an authorized user ․ of the vehicle and that the vehicle was a rental car.”   After verifying over the radio that the car was stolen, Davis and Slutske placed Arden under arrest for “being the occupant of a stolen vehicle.”   They had him sit in the back seat of their patrol car while they conducted “an inventory search of the vehicle as well as a search incident to the arrest of the occupant.”

According to Deputy Davis, “[t]he vehicle was in disarray․  The back seat was unbolted and loose.   There were plastic panels from underneath the dash that were missing [and] a bunch of debris [was] scattered about.”   From under the front seat, Davis recovered a 10–inch knife in a leather sheath.

In the trunk of the car, the deputies found a number of items including a backpack with household tools inside,³ some women's jewelry, a storage container filled with tea cups, duffel bags, several empty ladies' purses, some china, a few bottles of wine, a police scanner, two cell phones, a camera and “two glass bottles full of [a] yellow gasoline-ish smelling substance.”   On the top of the glass bottles was a “gauze-like substance” which was saturated with an oily material and attached to the bottles with rubber bands.   Believing that the substance might be flammable, Davis notified her field sergeant, the fire captain and the Sheriff's Department “arson and explosive detail” of what she and her partner had found.

Captain Mohr of the Los Angeles County Fire Department arrived at the scene, “opened one of the bottles, smelled the substance inside and said it smelled like gasoline.”   When members of the Sheriff's Department arson and explosive detail arrived, “[t]hey took a look at the bottles and took them into their custody.”

Dr. Joseph Cavaleri has a doctorate in Chemistry and works in the Los Angeles County Sheriff's Department crime lab.   He tested the liquid in the two bottles found in Arden's trunk and concluded that they contained gasoline.   In addition, Cavaleri determined that the material on top of the bottles amounted to “wick material.”   The “wick” was “wetted with an oil-type liquid” which “easily ignited with ․ the open flame from a match.”   Cavaleri concluded that the bottles were Molotov Cocktails;  they had breakable containers, they contained a liquid with a “flash point” of less than 150 degrees Fahrenheit and they had ignitable wicks.

2. Procedural history.

In an information filed on April 16, 2010, Arden was charged in count 1 with possession of a destructive device “on a public street and highway and other public place ordinarily passed by human beings” in violation of section 12303.2, a felony.   In count 2, he was charged with grand theft of an automobile in violation of section 487, subdivision (d)(1), a felony, and in count 3 with possession of burglar's tools in violation of section 466, a misdemeanor.

At proceedings held on May 3, 2010, Arden brought a Marsden ⁴ motion.   He essentially argued that his appointed counsel had not taken any affirmative action with regard to his case and that he had not been given the opportunity to adequately communicate with her.   After counsel explained the steps she had taken with regard to the investigation of Arden's case and the various forms of communication they had engaged in, the trial court, stating that defense counsel was “a very good lawyer,” denied Arden's motion.

On May 26, 2010, Arden made a motion to suppress “all evidence, either tangible or intangible, obtained against him including, but not limited to, any statements made by the defendant or any observation[s] of the sheriff's deputies as authorized by California Penal Code section 1538.5.”   Arden requested that “all evidence obtained after [he] was arrested and placed in custody in the rear seat of the patrol vehicle” be suppressed.   After a hearing was held on the matter, the trial court “respectfully denied” the motion.

At proceedings held on June 14, 2010, Arden's counsel made a motion pursuant to section 995 to dismiss count 2 of the information, which charged Arden with grand theft of an automobile.   The trial court granted the motion, stating, “I am going to grant the 995 as to count 2, and we will keep it counts 1 and 3 for purposes of our paperwork.   But as far as the jurors are concerned, we will call it count 1 and count 2, so they won't speculate as to what else was involved here.”

A jury trial began on June 15, 2010.   On June 17, 2010, after a number of witnesses had testified, the prosecutor indicated that her office had “extended a new offer to Mr. Arden.”   The prosecutor continued:  “The offer would be an open plea to an added count 4, a violation of ․ section 12303, possession of a destructive device.  [¶] This open plea would be contingent upon a psychiatric report.   This report could be done in county jail as opposed to a ․ 12031.3 diagnostic, which would require Mr. Arden to go to state prison for that report․  This would be an open plea to the court.   Meaning, depending on the results of the psychiatric report, it could go from time served up to state prison.”

After Arden indicated that he had discussed the proposed disposition with his counsel and had decided that he wished to accept it, he waived his right to a jury trial, his right to a court trial, his right to confront and cross-examine the witnesses against him, his right to subpoena witnesses and present a defense and his privilege against self-incrimination.   The trial court then informed Arden that he would likely be placed on formal probation, but that if he violated a term of probation he could be sentenced to state prison for a term of up to three years.   Arden indicated that he understood, then entered a plea of no contest to “the amended charge of count 4, [section] 12303 ․, possession of a destructive device.”

After dismissing counts 1and 3 in furtherance of justice (§ 1385), the trial court ordered a “full psychiatric report.”   Sentencing was set for July 1, 2010.

On July 20, 2010, the trial court indicated that it had read Arden's psychiatric report “very, very thoroughly.”   The court addressed Arden and stated:  “You are truly very capable of doing whatever you want to do in a constructive manner.   You're intelligent.   You've got a high degree of education, but there seems to be, according to the doctor, a lack of coping ability when you don't have a stable environment around.   You partake in very high risk behavior which is dangerous to yourself and potentially others․  [¶] Living out of the car and having Molotov Cocktails in the car is––quite frankly, ․ very dangerous․  These are my thoughts, and why I am going to do what I am going to do.”   The trial court then suspended imposition of sentence and placed Arden on three years formal probation.   Arden was ordered to serve 241 days in county jail, then given credit for 121 days actually served and 120 days of good time/work time.   As some of the various conditions of probation, Arden was to “get a job,” “do some counseling” and “maintain [a] residence as approved” by his probation officer.   He was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed $200 probation revocation restitution fine (§ 1202.44), a stayed $200 parole revocation restitution fine (§ 1202.45), a $30 court security fee (§ 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov.Code, § 70373) and the cost of probation.

Arden filed a timely notice of appeal on July 20, 2010.

This court appointed counsel to represent Arden on appeal on November 16, 2010.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed January 26, 2011, the clerk of this court advised Arden to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider.   No response has been received to date.

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278–284;  People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The facts are taken in part from the motion to suppress evidence..  FN2. The facts are taken in part from the motion to suppress evidence.

FN3. The backpack contained a hammer, a pair of needle nose pliers, screwdrivers, a pipe wrench and some sockets..  FN3. The backpack contained a hammer, a pair of needle nose pliers, screwdrivers, a pipe wrench and some sockets.

FN4. People v. Marsden (1970) 2 Cal.3d 118..  FN4. People v. Marsden (1970) 2 Cal.3d 118.

CROSKEY, Acting P.J. ALDRICH, J.