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P. v. Mierez

P. v. Mierez
11/30/09



P. v. Mierez



Filed 11/24/09 P. v. Mierez CA4/2



NOT TO BE PUBLISHED IN OFFICIAL REPORTS





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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA





FOURTH APPELLATE DISTRICT





DIVISION TWO



THE PEOPLE,



Plaintiff and Respondent,



v.



SANJAY MIEREZ,



Defendant and Appellant.



E048677



(Super.Ct.No. FWV802179)



OPINION



APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge. Affirmed.



Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and Appellant.



No appearance for Plaintiff and Respondent.



Pursuant to a plea agreement, on March 13, 2009, defendant Sanjay Mierez, represented by retained counsel, pled guilty to possession of marijuana for sale. (Health & Saf. Code, 11359.) In return, defendant was granted three years formal probation on various terms and conditions. Defendant appeals from the judgment.



I



FACTUAL AND PROCEDURAL BACKGROUND[1]



On June 6, 2008, Officer Hanley responded to defendants residence in regard to a sex registrant compliance check. Additionally, the officer was working specialized detail and was following up on WeTip complaints. A complaint had been made that defendant was possibly dealing drugs from his residence.



Once Officer Hanley determined defendants correct address, he and Officer Boyle made contact with defendant at his residence. Officer Hanley asked defendant if he could talk to him inside his apartment to prevent neighbors from hearing details of defendants sex registration requirement. Defendant acquiesced and allowed the officers to enter his apartment. While standing inside the doorway of defendants apartment, Officer Hanley smelled a strong odor of marijuana. Officer Hanley asked defendant if the apartment could be searched for child pornography. Defendant replied, yes.



While searching the apartment, Officer Hanley found large amounts of marijuana (some individually wrapped), items for packaging and weighing marijuana, pay/owe sheets, and a large amount of cash in defendants closet in plain view.



Based on his training and experience, Officer Hanley opined the marijuana was possessed for the purpose of sales. During the preliminary hearing, the parties stipulated that the marijuana recovered from defendants apartment weighed 107.96 grams. After he waived his constitutional rights, defendant initially denied selling marijuana but later admitted to selling it.



On August 7, 2008, a felony complaint was filed charging defendant with possession of marijuana for sale. (Health & Saf. Code, 11359.)



On August 13, 2008, defendant, in propria persona, filed a demurrer to the complaint or in the alternative a motion to suppress the evidence essentially on the grounds that he possessed the marijuana for medical use and that the search was illegal.



Defendants arraignment was held on August 26, 2008,[2]and he entered a plea of not guilty. At that time, the trial court denied defendants demurrer, noting there is nothing wrong with the face of the claim. In regard to defendants suppression motion, the court stated it could not deal with the motion. Defendant was thereafter appointed counsel. Defendants appointed counsel was later replaced by retained counsel.



Following a preliminary hearing on October 20, 2008, an information was filed charging defendant with one count of possessing marijuana for sale. (Health & Saf. Code, 11359.)



On March 13, 2009, defendant pled guilty as charged. At the change of plea hearing, the court reviewed the plea form with defendant and explained to defendant the constitutional rights he would be waiving by pleading guilty. The court also explained to defendant the consequences of pleading guilty. Defendant indicated he understood his rights and the consequences of pleading guilty. Defendant also replied in the negative to the courts inquiry of whether defendant had any questions concerning his rights, his plea, his sentence, or anything about the case. The court found that defendant knowingly, freely, voluntarily, and intelligently waived his constitutional rights and entered into his plea. Additionally, on the change of plea form, defendant initialed the box waiving his right to appeal any motion he could have brought or could bring from the conviction and judgment.



On May 26, 2009, defendant was sentenced in accordance with the plea agreement. He was placed on three years formal probation with various terms and conditions, including serving 270 days in county jail and forfeiting $5,380 cash, which had been seized at the time of his arrest.



On June 22 and 23, 2009, defendant filed notices of appeal based on the denial of the motion to suppress evidence under Penal Code section 1538.5. On June 30, 2009, defendant filed an amended notice of appeal based on the sentence or other matters that occurred after the plea and do not affect its validity, the denial of the suppression motion, and the validity of the plea or admission of probation violation. Defendants request for a certificate of probable cause was denied on July 9, 2009.



II



DISCUSSION



Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court undertake a review of the entire record.



We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.



We have now concluded our independent review of the record and find no arguable issues.



III



DISPOSITION



The judgment is affirmed.



NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RICHLI



J.



We concur:



McKINSTER



Acting P. J.



MILLER



J.



Publication courtesy of San Diego pro bono legal advice.



Analysis and review provided by Poway Property line attorney.



San Diego Case Information provided by www.fearnotlaw.com







[1] The factual background is taken from the preliminary hearing transcript and the probation officers report.



[2] The reporters transcript incorrectly shows August 26, 2009.





Description Pursuant to a plea agreement, on March 13, 2009, defendant Sanjay Mierez, represented by retained counsel, pled guilty to possession of marijuana for sale. (Health & Saf. Code, 11359.) In return, defendant was granted three years formal probation on various terms and conditions. Defendant appeals from the judgment.

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