Monterey County Superior Court No. SS120043A The Honorable Russell D. Scott
[Copyrighted Material Omitted]
Teresa Biagini under appointment by the Court of Appeal for Defendant and Appellant
Glenn Pesenhofer Deputy District Attorney, for Plaintiff and Respondent.
Pursuant to a negotiated plea, defendant Brittany Marie Morales pleaded no contest to one misdemeanor count of possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a)). The court granted her three years probation. The court’s order included a probation condition that she serve two days in the county jail, with credit for time served. The court also imposed fines and fees.
In July 2013, defendant’s counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071] (Wende) that set forth the facts of the case, but raised no specific issue, and asked this court to review the record and determine whether there are any arguable issues on appeal. Following our review of the entire record, we asked the parties to brief the following question: “Which court has appellate jurisdiction over this case: the Court of Appeal or the appellate division of the superior court?” We asked the parties to discuss three cases, including this court’s recent opinion in People v. Scott (2013) 221 Cal.App.4th 525 [164 Cal.Rptr.3d 459] (Scott), which held, on similar facts, that appellate jurisdiction is with the appellate division of the superior court. In their letter briefs, both parties assert that this case is distinguishable from Scott procedurally and that this court has jurisdiction over the appeal. We agree. In addition, we conclude that the judgment must be corrected to impose but stay a mandatory probation revocation restitution fine (Pen. Code, § 1202.44). After independently reviewing the record, we conclude that there are no other arguable issues on appeal and will therefore affirm the judgment as modified.
The facts are based on the testimony of two Salinas Police officers at the preliminary hearing.
Testimony of Officer Jeffrey Gibson
On January 2, 2012, shortly after noon, Officer Gibson was dispatched to room 228 of the Good Nite Inn to respond to a report of a domestic disturbance. The dispatcher told Officer Gibson, who had worked for the Salinas Police Department for 19 years, that there was a possibility a baby was involved.
When he arrived at the motel, Officer Gibson went directly to room 228, which was on the second floor; he did not go to the motel office. Officer Gibson was wearing his police uniform. As he walked up the stairs, he did not hear any yelling, screaming, or banging. When Officer Gibson got to the second floor landing, he saw an individual standing two doors down from room 228, pointing at room 228. When Officer Gibson got to room 228, someone came out of room 229 and also pointed at room 228.
Officer Gibson stood in front of room 228 and heard talking. He did not hear angry voices or anything out of the ordinary, so he knocked on the door
and announced “Salinas Police.” He knocked “about five times” before someone answered the door. Defendant opened the door three to four inches, peaked out, and immediately walked away from the door. Officer Gibson said 30 seconds passed between the time he first knocked on the door and the time defendant opened the door.
Officer Gibson did a “visual sweep” of the room, looking for threats, including other people and weapons. The motel room consisted of one room with a bathroom; it was not a suite. Officer Gibson saw defendant and one other woman standing near the door to the bathroom. Neither woman said anything.
Officer Gibson decided to separate the women and asked defendant to walk toward him. As she started to move, Officer Gibson took one step into the room. Defendant took two or three steps toward the officer. As she passed a dresser, defendant grabbed something from the top of the dresser with her right hand, and clenched it in her fist. Officer Gibson could not tell what she had grabbed and did not know whether it was a weapon. On cross-examination, he testified that there are handguns that can be concealed in the palm of the hand. Defendant took one more step, sat on the bed, and placed her right hand under her right thigh. By that time, another officer (Officer Lopez) had arrived. Officer Gibson directed the other woman to step out of the room and she left willingly with Officer Lopez.
Officer Gibson directed defendant to pull her right hand out from under her thigh twice and she did not comply. Officer Gibson then grabbed defendant’s right wrist, placed her in a “control hold, ” and pulled her hand out from under her thigh. As he pulled her hand out, a clear baggie fell out of her hand onto the bed. Officer Gibson, who ...