P. v. Martinez

Filed 1/27/09 P. v. Martinez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT:*

Ivan Martinez appeals from the judgment entered following his no contest plea to possession for sale of cocaine base (Health & Saf. Code, 11351.5). The plea followed denial of appellants motion to suppress evidence pursuant to Penal Code section 1538.5. The trial court suspended execution of sentence and placed appellant on three years formal probation.

FACTUAL AND PROCEDURAL BACKGROUND

The district attorney filed a one-count complaint against appellant, alleging that he possessed cocaine base for sale. During the course of the proceedings, appellant made a Pitchess[1]motion, which was granted, and the court conducted an in camera hearing. No discoverable material was produced.

Appellant filed a motion to suppress evidence, contending that his warrantless search violated the Fourth Amendment to the federal Constitution because his detention, pat down, and arrest were illegal. At the hearing on the suppression motion, the following evidence was adduced.

Officer Thomas Denton of the Los Angeles Police Department testified that on March 4, 2008, at approximately 7:50 p.m., he was patrolling in a marked police vehicle on Winston Street, in downtown Los Angeles, a known narcotics area. The officer observed appellant with his left hand outstretched, palm facing up, approximately 14 feet from the officers vehicle. Appellant was manipulating numerous off-white solids resembling cocaine base in his right hand. The officer immediately illuminated appellant with the spotlights on the police vehicle.

Officer Denton stopped his vehicle, got out and approached appellant, who slipped his fist around the items he had in his hands and placed them into his upper left jacket pocket. The officer detained appellant and recovered the items from his jacket pocket and immediately identified them as cocaine base. At that point, he placed appellant under arrest. Three additional items were recovered from appellant: (1) a black metallic container resembling a cigarette lighter, containing numerous off-white solids resembling cocaine base, (2) a blue ChapStick container containing numerous off-white solids resembling cocaine base, and (3) United States currency, consisting of a $20 bill, three $5 bills and 15 one dollar bills.

Officer Dentons partner, Officer Guzman, advised appellant of his Miranda[2]rights in Spanish. Appellant then said, Sir, I am not an addict. I only sell it to pay for my rent.

The trial court denied the motion to suppress the evidence, finding probable cause for the search.

We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an Opening Brief in which no issues were raised. On October 21, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received.

We have examined the entire record and are satisfied that appellants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

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* DOI TODD, Acting P. J., ASHMANN-GERST, J., CHAVEZ, J.

[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

[2]Miranda v. Arizona(1966) 384 U.S. 436.