P. v. Smith
Filed 7/16/12 P. v. Smith CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RODWELL H. SMITH, et al.,
Defendants and Appellants.
B242548
(Los Angeles
County
Super. Ct.
No. TA118603)
APPEAL from a judgment of the Superior
Court of
County, Arthur M. Lew, Judge.
Affirmed.
Patricia Soung, under appointment
by the Court of Appeal, for Defendant and Appellant Rodwell H. Smith.
No appearance for
Defendant and appellant Rodwell H. Smith was convicted of
Saf. Code, § 11360, subd. (a)
name="_ftnref1" title="">[1]), and possession of
marijuana for sale (§ 11359). On appeal,
appointed counsel for Smith filed an opening
brief in accordance with People v.
Wende (1979) 25 Cal.3d 436 requesting this court to conduct an independent
review of the record to determine if there are any arguable issues. On January 23, 2012, we attempted to give
written notice by mail to Smith, at the two addresses for him that were
reflected in the record, to advise him that his counsel had failed to find any
arguable issues and that Smith had 30 days within which to submit by brief or
letter any grounds of appeal, contentions, or arguments he wished this court to
consider. Our written notices were
returned to us as “not deliverable†and “unable to forward.†We contacted Smith’s counsel who advised us
that he did not have an address for Smith other than the addresses we attempted
to use to provide Smith with notice of the Wende
proceedings. We then contacted the City
of Pomona Probation Department and the Harbor Division of the Probation
Department who advised us that they had an address for Smith that was outside
of the State of
the address provide to us by the Probation Department, to advise him that his
counsel had failed to find any arguable issues and that Smith had 10 days
within which to submit by brief or letter any grounds of appeal, contentions,
or arguments he wished this court to consider.
Smith did not file a responsive
brief or letter. We have reviewed
the record and affirm the judgment as to Smith.
Factual
Background
Los Angeles Police Department Officers Bryan Dameworth
and Jesus Carrillo were in a patrol car when a vehicle suddenly turned and
changed lanes if front of them, causing Officer Dameworth, who was driving, to
brake. The officers initiated a traffic
stop. Smith, the driver of the vehicle,
exited it and Officer Dameworth directed him to go to the sidewalk.
Officer Carrillo testified that he
approached the front passenger side of the vehicle, and the window was
open. Officer Carrillo smelled a “strong
pungent odor†of fresh, not burned, marijuana coming from the vehicle. Officer Carrillo asked co-defendant Neziah
Ignatius Nesbeth,
title="">[2]
who was in the front passenger seat of the vehicle, if he had been smoking
marijuana, and Nesbeth responded, “Yes, sir, we both had been smoking
marijuana.â€
title="">[3]
Officer Dameworth testified that
Officer Carrillo motioned to him that he smelled an odor of something in the
vehicle. Officer Carrillo walked over to
talk to Smith, and Office Dameworth walked to the passenger side of the
vehicle. Officer Dameworth smelled the
odor of marijuana when he was about two or three feet from the vehicle. Officer Carrillo testified that Smith had an
expired medical marijuana card.
Officer Dameworth testified that he
opened the passenger door to the vehicle, smelled “a strong odor†of marijuana,
and observed a blue trash bag in the center of the vehicle between the second
row passenger seats. The blue trash bag
contained four unwrapped bricks of marijuana totaling 16.8 pounds. Officer Dameworth testified that he did not
find any marijuana smoking paraphernalia or rolling papers in the vehicle or on
the persons of Smith or Nesbeth. The
officers testified that neither Smith nor Nesbeth showed any symptoms of being
under the influence of marijuana.
Based on a hypothetical question
closely tracking the facts introduced at the trial, Los Angeles Police
Department Officer Darren Stauffer, the prosecution’s expert witness, opined
that individuals in the vehicle possessed and transported the marijuana for
purpose of sale. Officer Stauffer
opined, based on his experience, that people who transported drugs sometimes do
it alone and sometimes in groups. The
street value of marijuana ranged from $1,000 to $10,000 a pound, depending on
the quality.
B.
Procedural
Background
The District Attorney of Los
Angeles County filed an information jointly charging Smith and Nesbeth with
possession of marijuana for sale in violation of section 11359 (count 1), and
sale/offer to sell/transportation of marijuana in violation of section 11360,
subdivision (a) (count 2). Following a
trial, the jury found Smith guilty on both counts. The trial court sentenced Smith to 184 days
in county jail and three years of formal probation, and imposed fines.
was credited with 184 days in actual
custody credits.
DISCUSSION
We
appointed counsel to represent Smith
in this appeal. After examining the
record, counsel filed an opening brief asking this court to independently
review the record in accordance with People
v. Wende, supra, 25 Cal.3d
436. On January 23, 2012, we attempted
to give written notice by mail to Smith that counsel had failed to find any
arguable issues and that Smith had 30 days within which to submit by brief or
letter any grounds of appeal, contentions, or arguments he wished this court to
consider. Our written notices were
returned to us as undeliverable, and Smith’s counsel was unable to provide us
with a different address to use to provide Smith with notice of the
at the address provide to us by the Probation Department, to advise him that
his counsel had failed to find any
arguable issues and that Smith had 10 days within which to submit by brief or
letter any grounds of appeal, contentions, or arguments he wished this court to
consider. Smith did not submit a brief or
letter. We have examined the entire
record and are satisfied that Smith’s counsel has fully complied with his
responsibilities and that no arguable
issues exist. (People v. Wende, supra,
25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
We concur:
ARMSTRONG,
Acting P. J.
KRIEGLER,
J.
name="_ftn1" title="">[1] All
statutory citations are to the Health and Safety Code unless otherwise noted.
name="_ftn2" title="">[2] Nesbeth
appealed, and we consider it in a separate opinion.
