P. v. Sanborn

Filed 7/28/09 P. v. Sanborn CA2/6

Received for posting 8/12/09

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Bruce Thornton Sanborn appeals from the judgment entered following his guilty plea to the charge of conspiracy to sell a controlled substance. (Pen. Code, 182, subd. (a)(1).)[1] He admitted a prior "strike" conviction within the meaning of the Three Strikes law. ( 1170.12, subds. (a)-(d), 667, subd. (b)-(i).) Appellant further admitted two prior convictions: possession for sale of a controlled substance and possession of a compound with intent to manufacture phencyclidine (PCP). (Health & Saf. Code, 11378, 11383.)

The trial court struck the prior strike conviction and sentenced appellant to 9 years in state prison. It selected the midterm of 3 years, and imposed two 3-year enhancements for the prior drug-related convictions. (Health & Saf. Code, 11370.2.) Appellant filed a notice of appeal and the trial court denied his request for a certificate of probable cause to challenge the validity of his plea.

Our facts are taken from the probation report. On February 22, 2007, appellant and his wife, Penelope Sanborn, telephoned a dealer (David Hersh) who manufactured and sold methamphetamine in Thousand Oaks. A wiretap had been placed on Hersh's phone. Appellant and his wife told Hersh they would like to buy one pound of methamphetamine. Hersh contacted another individual (Paul Aguilar) who said he would sell Hersh one pound of methamphetamine for $10,500. The men agreed to sell the narcotics to appellant and his wife for $12,000 and split the profit. Throughout the day, several phone calls were exchanged between Hersh, appellant, his wife and Aguilar.

At 9:00 p.m. on February 22, 2007, all four individuals met at a parking lot outside the Home Depot in Canoga Park to complete the transaction. Simi Valley undercover narcotics officers watched as appellant approached a vehicle, placed an item under his jacket, and returned to his car. After appellant and his wife drove away, they were pulled over and arrested. A search of their car revealed one pound of methamphetamine in a plastic bag. They were taken to the Simi Valley Police Station and later transported and booked into Ventura County jail. The probation report indicates that appellant lived in Saugus and has never resided in Ventura County. In a statement to the probation officer, appellant said that he and his wife earned $70,000 from the sale of their home and decided to use the funds to purchase methamphetamine and sell it on the streets.

Appellant entered a guilty plea to the charge that he conspired to transport or sell a controlled substance. When he entered his plea, appellant admitted the commission of three overt acts in furtherance of the conspiracy. The first overt act occurred when he and his wife ordered one pound of methamphetamine from a co-conspirator; the second act was committed when a co-conspirator transported and delivered approximately one pound of methamphetamine; and the third act was the purchase of the methamphetamine. Appellant admitted his prior strike conviction and two prior drug-related convictions.

At sentencing, appellant informed the court that he wished to withdraw his guilty plea. Defense counsel indicated that appellant's request was made against his advice. The court appointed conflict counsel (Martin Zaehringer) for the limited purpose of determining whether grounds existed for filing a motion to withdraw appellant's guilty plea. Zaehringer determined there was no basis for filing such a motion, and the matter proceeded to sentencing. The trial court sentenced appellant in accordance with the plea agreement.[2]

We appointed counsel to represent appellant in this appeal. After reviewing the record, counsel filed an opening brief raising no issues and requesting this court to independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

On May 20, 2009, we advised appellant that he had 30 days in which to submit a written brief or letter stating any contentions or arguments he wished us to consider. With our permission, appellant filed a response on June 22, 2009, in which he alleged that (1) the trial court lacked jurisdiction to hear the matter, and (2) he received the ineffective assistance of counsel.

Appellant argued that the drug transaction and his arrest occurred outside

Ventura County, and that he had never resided in Ventura. He reasoned that the trial court lacked jurisdiction to hear the matter, which should have been filed in Los Angeles County. He stated that conflict defense counsel (Zaehringer) advised him that he could raise the issue of jurisdiction on appeal. However, his appellate attorney advised him that the issue could not be raised due to trial counsel's failure to raise it below. Appellant also argued that he did not waive his right to appeal because he did not initial the corresponding box in his felony disposition statement. He contended that his wife's calling a phone number with an 805 area code did not confer jurisdiction upon Ventura County because a cell phone can be used in any geographical area.

A conspiracy may be prosecuted in the superior court of any county where an overt act has occurred. ( 182, subd. (a), 184.) Where an offense is committed in more than one jurisdictional territory, the court's jurisdiction is proper in any territory where an act was committed. This includes preparatory acts or those made to effectuate the commission of a crime. ( 781; People v. Simon (2001) 25 Cal.4th 1082, 1092 .) Two overt acts occurred in Ventura County: the manufacture and sale of methamphetamine by a co-conspirator; and a request by other co-conspirators to purchase narcotics manufactured there. Hersh's precise location when he received the order for methamphetamine is not determinative of the issue of jurisdiction. Appellant's claim of ineffective assistance of counsel must be rejected on appeal because the record does not indicate the basis for counsel's challenged actions. (People v. Lopez (2008) 42 Cal.4th 960, 966.)

We have reviewed the record and are satisfied that appellant's attorney has fully complied with his responsibilities, and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal.4th 106, 126.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, A.P.J.

PERREN, J.

Kevin McGee, Judge

Superior Court County of Ventura

______________________________

Greg May, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.

[2] Although the plea form indicated a 12-year "lid" the court and counsel agreed at the sentencing hearing that the agreement constituted a stipulated 9-year sentence.