P. v. Hicks

Filed 2/3/09 P. v. Hicks CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed.

Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Terry Hicks appeals from the judgment entered following his plea of no contest to driving under the influence of alcohol or drugs (Veh. Code, 23152, subd. (a)) and the transportation of a controlled substance, ecstasy (Health & Saf. Code, 11379, subd. (a)), and his admissions that he previously had been convicted of driving under the influence of alcohol or drugs (Veh. Code,  23550, 23550.5) and had served a prior prison term (Pen. Code, 667.5, subd. (b)). Pursuant to a negotiated plea agreement, the trial court sentenced Hicks to two years in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.^[1]

At approximately 11:30 p.m. on January 13, 2008, Los Angeles Police Officer David Tello and his partner, Officer Ashley, responded to a call directing them to a residence at 3946 West 59th Place in Los Angeles. The owner of the residence reported that a car he had never seen before was parked on his front lawn and that loud music was coming from the vehicle.

When the officers first arrived, they observed a 2000, red Chevy Impala with its engine running, sitting at rest on the front yard on the grass. Hicks was sitting in the drivers seat. The windows were up, the doors were locked and the vehicle was in the drive position. Hicks, however, whose eyes were closed and head was leaning back into the seat, appeared to be asleep.

After blocking it with his patrol car, Officer Tello approached the Impala and attempted to get the drivers attention. As he leaned up against the drivers side window, Tello observed, in plain view resting on Hickss lap, a clear plastic bag which contained smaller plastic baggies. One of the bags contained 13 yellow pills which resembled ecstasy. Another five plastic baggies contained what appeared to be powdered cocaine. Four of the baggies had pictures of Batman on them.

Tello used his siren, his flashlight, headlights, spotlights, the public address system and the horn on his patrol car to try to awaken Hicks. Tello even used [his] body weight to move the car to try to wake [Hicks] up. Hicks did not wake up, but the baggie containing the narcotics fell to the floorboard of the car. Finally, officers used a tool to smash the rear passengers window on the drivers side of the car. Since there was still no response from Hicks, an officer reached into the car, unlocked the front door, opened it, cut off Hickss seat belt, removed him from the car and placed him in handcuffs. At that point, Hicks woke up, looking surprised.

As Hicks was taken into custody, another officer reached into the car and removed the baggies of narcotics. Yet another unit transported Hicks to the police station. A search of Hicks revealed $167 in cash. The baggies containing ecstasy tablets and white powder resembling cocaine were booked into evidence. While in custody, Hicks told Tello that the ecstasy and cocaine belonged to him. Hicks admitted that he takes five or ten ecstasy pills per month.

Los Angeles Police Officer Jose Camacho was at the Hollywood station at approximately midnight on January 13, 2008. Camacho was to observe Hicks while he was in the holding tank to determine whether Hicks was under the influence of narcotics. Camacho and another officer performed standard field sobriety tests. Camacho also checked Hickss eye pupils in different lighting conditions, took his pulse, and checked his blood pressure and temperature. After gauging Hickss reaction to the various tests, Camacho formed the opinion Hicks was under the influence of a stimulant and might have been under the influence of marijuana as well.

After waiving his constitutional right to remain silent, Hicks told Tello that he had been on his way to a party. Hicks did not know exactly where he was, but believed that he was close to his house. He had been alone in his car and did not have any recollection of landing in [a] front yard. Hicks told Tello that he was on probation and parole for prior convictions of driving under the influence of drugs or alcohol. Hicks admitted the ecstasy and cocaine found in his car belonged to him.

Los Angeles Police Officer Rick Rodgers is an expert in narcotics. It was his opinion that, due to the quantity, the 13 ecstasy tablets were possessed by Hicks for the purpose of sale. Rodgers had never seen anyone in possession of more than three tablets for their personal use. It was stipulated, for purposes of the preliminary hearing only, that the ecstasy tablets possessed by Hicks weighed 3.22 grams and the cocaine weighed 2.27 grams.

2. Procedural History.

On February 13, 2008, Hicks was charged by information with one count of driving under the influence of alcohol or drugs in violation of Vehicle Code section 23152, subdivision (a), one count of the transportation of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a), one count of possession for sale of a controlled substance in violation of Health and Safety Code section11378, and one count of the sale or transportation of a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). It was further alleged that he had twice previously been convicted of the sale or transportation of a controlled substance pursuant to Health and Safety Code section 11370.2, subdivision (a), and that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).

At proceedings held on June 9, 2008, Hicks waived his right to a jury or 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 advised Hicks that, should he at some point kill another while driving under the influence, he could be tried for second-degree murder. After the trial court then advised Hicks of the various fines and penalties he would be required to pay, Hicks pleaded no contest to count one, driving under the influence of alcohol or drugs, a felony, and count two, the transportation of a controlled substance for personal use, a felony. Hicks admitted previously having been convicted of driving with a 0.08 level of alcohol in his blood in violation of Vehicle Code section 23152, subdivision (b).

The trial court sentenced Hicks to the previously agreed upon mid-term of two years in state prison for his conviction of count one. For his conviction of count two, the trial court imposed a concurrent sentence of the low term of two years in prison. Hicks was given presentence custody credit for 149 days actually served and 74 days of good time/work time, for a total of 223 days. In lieu of a $390 DUI fine, Hicks agreed to serve 13 more days in prison. After informing Hicks of various other fines and penalties he would be required to pay, the trial court informed Hicks that, when he was released from prison, he would be required to register as a narcotics offender. The remaining counts, counts three and four, were dismissed in furtherance of justice. (Pen. Code, 1385.)

On June 13, 2008, Hicks wrote a letter to the trial court indicating that law enforcement officers had never performed a toxicity test and that, as a result, he wished to withdraw his plea. At a hearing held on August 5, 2008, the trial court indicated it had read and considered Hickss letter and determined Hicks had failed to state good cause for having his plea withdrawn. The court indicated that determination of the toxicity results of his blood sample [was] not [a] sufficient reason to allow the defendant to withdraw his plea. After noting that he had received the benefit of his plea bargain, the trial court denied Hickss request.

On August 5, 2008, Hicks filed a timely notice of appeal and request for a certificate of probable cause. The request for a certificate of probable cause was denied on August 7, 2008.

This court appointed counsel to represent Hicks on appeal on September 22, 2008.

CONTENTIONS

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

By notice filed October 27, 2008, the clerk of this court advised Hicks to submit within 30 days any contentions, grounds of appeal, or arguments he wished this court to consider. On November 3, 2008, Hicks filed a supplemental brief arguing that the People never proved [that he] was under the influence at the time of [his] arrest, without a toxicology report, even though drugs were in his system. Hicks indicates that he is willing to accept the consequences of the charge he possessed drugs, but not that the prosecutor had made a case for the charge that he had been driving under the influence.

Whether a toxicology test was performed is irrelevant. Hicks pled guilty to the charge and there was a factual basis for the plea. Hicks was found sleeping in his car on the front lawn of a strangers home. Once he was taken to jail, Officer Camacho observed Hicks, administered sobriety tests and determined Hicks was under the influence of a stimulant and, possibly, marijuana.

APPELLATE REVIEW

We have examined the entire record and are satisfied Hickss counsel has complied fully with counsels 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

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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^[1] The facts have been taken from the transcript of the preliminary hearing.