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November 30, 2010


The opinion of the court was delivered by: Sepulveda, J.

P. v. Babb CA1/4


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County )

Defendant appealed after he was placed on probation following his plea of no contest to one count of possession of cocaine base for sale (Health & Saf. Code, § 11351.5). His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We find no arguable issues and affirm.

According to evidence presented at a combined preliminary hearing and hearing on defendant's motion to suppress pursuant to Penal Code section 1538.5,*fn1 a Vallejo police officer was patrolling in a marked police vehicle at approximately 8 p.m. on December 6, 2008, in central Vallejo. The officer stated that he was familiar with the area. He was aware of a recent shooting that had taken place in the neighborhood, as well as frequent gambling and a prevalence of gun and narcotic activity in the area.

The officer testified that as his patrol car approached a Jeep Cherokee that was parked on the 1900 block of Ohio Street, he observed the Jeep flash its lights. Becoming suspicious, the officer drove past the Jeep and shined a flashlight into the driver's side of the vehicle. The officer observed defendant slumped over in the driver's seat, but was only able to see the top of his back and was unable to determine if he was awake. Finding this behavior "very suspicious," the officer made a U-turn and parked behind the Jeep. The officer then got out of his patrol car and shined his flashlight into the Jeep, observing defendant seated in the driver's seat.

As the officer approached the Jeep, defendant opened the driver's side door and started to get out. The officer testified that, for officer safety reasons, he directed defendant to remain seated in the vehicle. The officer then smelled an odor of smoked marijuana emanating from the Jeep. Defendant acknowledged that he was smoking marijuana but claimed to have a "marijuana card." While questioning defendant, the officer observed him reach toward the front passenger floorboard of the vehicle, an area where the officer could not see. The officer asked defendant not to reach down and to leave his hands where the officer could see them. After the officer observed defendant attempt to reach down two or three more times, he ordered defendant to get out of the Jeep.

The officer testified that because he was in an area where he knew guns were prevalent, and because of defendant's suspicious movements, he conducted a patsearch of defendant for weapons. While patting defendant's front jacket pocket, the officer felt a cluster of small, hard objects, which, based on his previous experience in conducting more than 300 cocaine-related searches, he believed to be cocaine base. The officer then placed defendant under arrest before removing a baggie from defendant's pocket that contained 51 individually-wrapped pieces of cocaine base. On the basis of his training and experience, the officer was deemed an expert witness in the possession of cocaine base for the purpose of sale. The officer stated that in his opinion, the large amount of cocaine base found on defendant (which the parties stipulated to weigh 9.73 grams) was not consistent with what "a typical user uses or has on their person," and therefore indicated that defendant possessed the drugs for the purpose of sale.

The trial court denied defendant's motion to suppress because it concluded that the officer acted reasonably under the circumstances, and held defendant to answer. Defendant filed a motion to dismiss (§ 995), renewing his argument that the seized evidence should be suppressed. On March 23, 2010, the trial court denied defendant's motion to dismiss.

No error appears in the entry of defendant's plea, or in his sentencing. Defendant was advised of his constitutional rights prior to the entry of his plea, as well as the consequences of his plea. The court found the plea to be free and voluntary, and that there was a factual basis for the plea. Defendant was represented by counsel throughout the proceedings. The trial court properly denied defendant's motion to suppress pursuant to section 1538.5 and his subsequent motion to dismiss pursuant to section 995.*fn2

There are no meritorious issues to be argued on appeal. The judgment is affirmed.

We concur: Reardon, Acting P. J. Rivera, J.

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