P. v. Montoya

 

 

Filed 1/23/14  P. v. Montoya CA3

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

 

COPY

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD
APPELLATE DISTRICT

(Yolo)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   CARLOS MONTOYA,                           Defendant and Appellant.

C073539   (Super. Ct. No. CRF123545)

 

 

            Appointed
counsel for defendant Carlos Montoya has filed an href="http://www.mcmillanlaw.us/">opening brief that sets forth the facts
of the case and asks this court to review the record and determine whether
there are any arguable issues on appeal.href="#_ftn1" name="_ftnref1" title="">[1]  (People v. Wende (1979) 25 Cal.3d
436.)  Finding no arguable error that
would result in a disposition more favorable to defendant, we affirm the
judgment. 

            We
provide the following brief description of the facts and procedural history of
the case.  (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

            On
September 6,
2012, officers conducted a probation search
of defendant’s brother’s home.  Defendant
was in the shower when the officers arrived. 
When Officer Pelle requested defendant come out of the bathroom, she saw
him turn quickly back to the bathroom and retrieve a black fanny pack.  Defendant brought the bag with him and sat
down on the couch in the living room, as requested. 

            Officer
Pelle noticed that defendant’s eyes were watery and glassy, and he was
argumentative and defensive.  She shined
a light on his eyes and they did not constrict and dilate as they should have
considering the darkness of the room. 
She then performed a drug evaluation on defendant and, based on her
training and experience, formed the opinion that he was under the influence of
an opiate. 

            During
the drug evaluation, defendant stated that he had methamphetamine in the fanny
pack, but claimed he had found it and had planned to dispose of it.  Officer Berrera searched the bag and found
methamphetamine and a loaded syringe containing heroin.  Defendant consented to a href="http://www.fearnotlaw.com/">search of his vehicle wherein officers
discovered an open bag of hypodermic needles. 
Defendant was taken into custody. 


            After
his motion to suppress evidence was denied, defendant pled no contest to
possession of heroin.  (Health & Saf.
Code, § 11350, subd. (a).)  In
exchange for his plea, it was agreed that two additional counts would be
dismissed and he would be placed on drug treatment probation. 

            Sentencing
took place on April 15,
2013. 
The trial court suspended imposition of sentence, placed defendant on
probation and imposed various fines and fees. 
Defendant appeals.  He did not
obtain a certificate of probable cause.  (Pen. Code, § 1237.5.)

            Having
undertaken an examination of the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.

Disposition

            The
judgment is affirmed.

 

 

 

                                                                                              HULL                           , J.

 

 

 

We concur:

 

 

 

          RAYE                           , P. J.

 

 

 

          MAURO                       , J.