P. v. Kita

Filed 5/27/08 P. v. Kita CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

After denial of defendants pretrial motion to suppress evidence and her waiver of the right to a jury trial, she was convicted following a trial before the court of possession of methadone (Health & Saf. Code,  11350, subd. (a)), and driving without a valid drivers license (Veh. Code,  12500, subd. (a)). She was found not guilty of additional charges of being under the influence of particular controlled substances (Health & Saf. Code,  11550, subd. (a)), and driving while under the influence of a controlled substance (Veh. Code,  23152, subd. (a)). Her appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or favorable modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has advised defendant that she can file a supplemental brief raising additional points she would like to call to our attention. She has not done so.[1] Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On the night of December 16, 2005, defendant was detained by Millbrae Police Officer Stephen OMalley for driving with expired registration tags. She was the sole occupant of the car. At Officer OMalleys request defendant provided a drivers license and vehicle registration, both of which were expired.

Officer OMalley then observed that defendant exhibited physical symptoms consistent with being under the influence of a controlled substance: she seemed restless, her speech was rapid, her pupils were more constricted when tested with a pupilmeter than normal for the nighttime lighting conditions, her mouth was dry, and her pulse rate was rapid. Defendant stated to the officer that she never used any kind of narcotics or drugs, and claimed she was just tired.

Defendant performed field sobriety tests and the Romberg Test at the direction of Officer OMalley.[2] Before beginning the tests defendant denied that she suffered from any physical defects, problems or injuries, had eye problems, was taking any prescription drugs, or was under the care of a doctor. The results of the tests were consistent with someone who was under the influence of a controlled substance. After the tests, the officer again asked defendant if she used any drugs. Defendant admitted that she had done a couple of lines of meth earlier in the day. Officer OMalley formed the opinion that defendant was driving under the influence of a controlled stimulant, and arrested her.

A search of defendants car resulted in the discovery of a purse on the front passenger side floorboard. Inside the purse was a small pill box that contained nine small, white methadone pills. A urine test performed on defendant at the police station revealed elevated levels of amphetamine, cocaine, opiates, methadone and methamphetamine metabolites.

Defendant testified in her defense that when the detention occurred she was driving from her home in Richmond to the home of her estranged husband, Francis Moraes, in Millbrae, at his request. Moraes was depressed and threatening to kill himself again. He asked defendant to come and get him, because he didnt feel well. Moraes pled with defendant not to call the police because the last time he was suicidal it cost him a lot of money when she called 911 and he was taken into treatment. Defendant was aware that her drivers license and vehicle registration had expired, but nevertheless decided to drive to Millbrae to help Moraes. Defendant acknowledged that she took a normal fix of heroin very early that morning along with 10 milligrams of methadone, snorted crystal methamphetamines a little later in the morning, and had taken cocaine the night before. Still, she testified that she felt okay to drive in her physical condition. Defendant claimed that the purse with the container of methadone pills found in her car did not belong to her.

Defendant was detained by Officer OMalley just after she exited Highway 101 in Millbrae, and Moraes was continuing to scream and yell at her over the telephone. She suggested that her elevated pulse rate was caused by the increased anxiety level associated with her husbands suicide threat and the detention. She explained that her poor results on the field sobriety tests were due to the clogs she was wearing and the muddy conditions.

The defense also offered the testimony of Dr. Kyle Moore, an expert on the physiological effects of drug ingestion. He testified that a urine test measures the presence and levels of drugs in the system, but not the effect on the body at the time of the test. Ingested drugs remain in the system in detectable levels long after the effects of ingestion upon physical performance have dissipated. He offered the opinion that, based on defendants testimony as to the time she ingested the methadone, heroin, cocaine and methamphetamine, her driving ability would no longer have been impaired when she was detained, despite the positive toxicology report results.

The trial court found defendant guilty of possession of a controlled substance as charged in Count 1, and driving on a suspended license as charged in Count 4.[3] Based on the testimony of Dr. Moore, the court found a reasonable doubt that defendant was under the influence while she was driving, and thus found her not guilty of Counts 2 and 3.

Following trial, the court denied defendants request to reconsider her motion to suppress evidence based upon a claim of Officer OMalleys incorrect evaluation of the pupilmeter results as procedurally inappropriate. The court also denied defendants motion for a new trial on grounds that her license had not expired pursuant to the statutory five-year period (Veh. Code,  12816, subd. (a)) when she was detained, and her physical incapacity that prevented renewal of her drivers license after her license expired.

The trial court found that defendant was not eligible for deferred entry of judgment under Penal Code section 1000, or for probation and drug treatment under Proposition 36 (Pen. Code, 1210 et seq.). The court suspended imposition of sentence on Count 1, and placed defendant on three years supervised probation, on the conditions, among others, that she serve 120 days in county jail, modifiable to a residential treatment program acceptable to the probation department, and complete an approved residential treatment program. She was placed on one-year summary probation for the misdemeanor driving on a suspended license conviction. Defendant was ordered to register as a narcotics offender (Health & Saf. Code,  11590), submit to genetic marker testing (Pen. Code,  296), and pay a $200 restitution fee (Pen. Code,  1202.4), a supervised probation fee (Pen. Code,  1203.1, subd. (b)), a laboratory analysis fee (Health & Saf. Code, 11372.5, subd. (a)), a drug program fee (Health & Saf. Code, 11372.7), and a court security fee (Pen. Code,  1465.8, subd. (a)(1)). This appeal followed, and defendant was granted release on bail pending appeal.

DISCUSSION

We find nothing in the record of the pretrial proceedings that presents an arguable issue on appeal. The complaint and information provided defendant with adequate notice of the charged offenses. Her motions to suppress evidence and dismiss Count 4 were properly denied. The detention of defendant by Officer OMalley and search of her vehicle were justified. Upon review of the record we find that defendants waiver of the right to a jury trial was knowing and voluntary. The Peoples in limine motion number three to prevent presentation of evidence to attempt to cause jury nullification was properly granted, and the remaining in limine motions by the prosecution to preclude presentation of evidence by the defense were denied.

We have not discovered any objections or disputes over the admission or exclusion of evidence, or prosecutorial misconduct at trial which require our consideration. As this was a court trial, no issue as to the propriety of jury instructions is presented. The guilty verdicts on Counts 1 and 4 are supported by substantial evidence. Defendants posttrial motion to suppress evidence was not cognizable (Madril v. Superior Court (1975) 15 Cal.3d 73, 77; People v. Williams (2007) 156 Cal.App.4th 949, 955), and the new trial motion was not based on proper grounds.

We discern no errors in the sentencing of appellant. The trial court correctly determined that appellant was not eligible for deferred entry of judgment (Pen. Code,  1000) or Proposition 36 probation and drug treatment. The probationary term and conditions were proper. The court was justified in imposing the fines and fees upon defendant. No error appears in the calculation of (two) sentence credits.

Appellant was represented by competent counsel throughout the proceedings.

After a full review of the record, we find no arguable issues and, accordingly, affirm the judgment.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Defendant submitted a letter to this court requesting that her court-appointed counsel on appeal be replaced. That request was denied by separate order on March 18, 2008.

[2] The Romberg test measures the internal clock of the subject by asking them to estimate the passage of 30 seconds while standing with heels and toes together and eyes closed.

[3] Defendants necessity defense was rejected.