P. v. Lewis

Filed 12/9/08 P. v. Lewis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A jury found defendant Jarvis Lewis guilty of felony transportation of ecstasy (Health & Saf. Code,  11379, subd. (a)) and misdemeanor transportation of less than an ounce of marijuana (Health & Saf. Code,  11360, subd. (b)). The trial court placed him on three years probation conditioned on serving 120 days in the county jail.

Appellate counsel has filed an opening brief that raises no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. We find no arguable issues and affirm.

I.

At 1:30 a.m. on January 25, 2007, Fairfield Police Officer Roy Stockton received a dispatch that there were several individuals associated with a white vehicle walking into a cemetery on Union Avenue. As he drove through the cemetery, Stockton saw a white car with no rear license plate. He followed the car through the cemetery and then conducted a traffic stop, as the lack of a rear plate is a Vehicle Code violation.

As Stockton walked up to the car, the driver rolled down his window. [A] cloud of smoke emanated from the vehicle with a heavy smell of marijuana. There were four people in the car. There was a smell of burnt marijuana as though they had just smoked the marijuana in the vehicle.

Stockton ordered the driver out of the car and searched him. He found nothing. He left the driver in the custody of a backup officer and walked to the front passenger side of the car. Defendant was in the front passenger seat. Stockton ordered defendant out of the car, and asked defendant if he had on his person any guns, drugs, anything illegal, or anything that could cut me, poke me or prick me. Stockton also asked defendant if he had any needles in his pockets.

Defendant admitted to Stockton that he had marijuana in the inside pocket of his jacket. Stockton did not have his gun drawn, and defendant was not in handcuffs. Stockton searched defendant and found 5.39 grams of marijuana packaged in 11 baggies, as well as 22 ecstasy pills.

Defendant testified as follows. He lived in San Francisco with his mother and worked at a Starbucks. On January 24 he went to the cemetery to visit his best friends grave. He admitted possessing marijuana and ecstasy. He admitted smoking marijuana that day. He admitted that he and others were drinking and smoking and just standing over the grave.

II.

We have reviewed the record and find no arguable issues. There was no Fourth Amendment violation and defendants motion to suppress was properly denied. Any improper comments by the Deputy District Attorney focused on two counts of possessing drugs for sale, of which defendant was acquitted. So he suffered no prejudice.

Defendant was represented by counsel at all significant stages of the proceedings.

There was no error in the proceedings or the sentence imposed.

III.

The judgment of conviction is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Margulies, J.

______________________

Flinn, J.*

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* Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.