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The People v. Jens Orion Brazwell

August 12, 2011


Super. Ct. No. 10F309

The opinion of the court was delivered by: Mauro,j.

P. v. Brazwell CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appointed counsel for defendant Jens Orion Brazwell asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no arguable error and no entitlement to additional presentence credit. We will affirm the judgment.

I Officer Williams and three other officers went to 3154 Leonard Street on October 5, 2009, to investigate a report of marijuana cultivation. There was a strong smell of marijuana plants when they arrived at the residence. Officer Williams looked over the fence of the residence and saw defendant tending marijuana plants approximately seven or eight feet tall.

Officer Williams knocked on the front door for several minutes until defendant answered. Defendant said he did not have a key to the front door and met the officer in the side yard. Defendant told Williams he could not give the officers permission to enter the yard, as he was not the owner of the residence, and gave an officer the phone to talk to the owner. There was no one else on the property.

After the phone conversation, the officers entered the property and found 16 tall, budding marijuana plants growing in the yard. Defendant did not have a medical recommendation for marijuana use. He did have two medical recommendations for other individuals, but the amount growing exceeded the legal allotment. Defendant claimed to be visiting the property and told the officer that the property owner paid him $100 a week to take care of the plants while he was away. He was working on obtaining a rental agreement, but was currently living in the neighboring field.

Williams investigated the field where defendant claimed to be living. He found trash and a thistle-filled sleeping bag rolled up in a ball in a bush, but it did not appear that anyone was living or camping in the area. The officers obtained a search warrant and searched the 3154 Leonard Street residence. Inside, officers found 26 immature marijuana plants growing under lights and various fertilizers and soil amendments.

The officers also searched the residence for indicia of defendant's residency. They found some food in the refrigerator, mail addressed to defendant at General Delivery on the kitchen counter, and copies of defendant's social security card and driver's license, as well as other mail, in the curbside trash. In one of the bedrooms, the officers found a mattress with bedclothes on it, personal items attached to a wall, a closet full of men's clothing, letters and other paperwork addressed to defendant, a bag with defendant's name on it, and a photo album belonging to defendant. A key was found attached to defendant's wallet that opened the front door to the residence.

Officers then spoke with neighbor Nichole Chase. Chase had seen defendant on the property on an almost daily basis for the prior three to four months, primarily tending to or sitting in the yard. She had seen him there at various times of the day and evening and had spoken with him on occasion. She had never seen anyone camping or living in the neighboring field.

Defendant was convicted of a sex offense in 1990 which required lifetime registration as a sex offender. He had been registering as a transient on a monthly basis, including in August and September 2009.

A jury found defendant guilty of failing to register as a sex offender after moving to a residence (Pen. Code, § 290.11)*fn1 and of cultivating marijuana (Health & Saf. Code, § 11358). The trial court found defendant had a prior serious felony conviction (§ 1170.12) and had served a prior prison term (§ 667.5, subd. (b)).

After denying defendant's request to strike his prior serious felony conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), the trial court sentenced defendant to eight years four months in prison, consisting of the upper term of three years, doubled, for failing to register; a consecutive eight months (one-third the middle term), doubled, for cultivating marijuana; and a consecutive one year for the prior prison term. The trial court also imposed a $1,600 restitution fine, a stayed $1,600 parole revocation fine, a $50 criminal laboratory ...

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