Opinion
G045423
04-19-2012
THE PEOPLE, Plaintiff and Respondent, v. LUIS JAIME, Defendant and Appellant.
Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 09NF3295)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Walter P. Schwarm, Judge. Affirmed.
Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
After investigating Appellant Luis Jaime for two weeks, police suspected him of selling drugs. On August 9, 2009, they followed him as he left his apartment and stopped his car, which had expired license tags. Upon contacting Jaime, they noted symptoms of drug usage. He was in fact under the influence of a controlled substance. This led to a search warrant for his home, where the contraband supporting the charges against him was found.
He was charged with several controlled substances offenses, the most serious of which was transportation of methamphetamine (Health & Saf. Code, § 11379). He was convicted by a jury of possession of a controlled substance as a lesser included offense of the transportation count, acquitted of a possession for sale count, and convicted of possession of cocaine, possession of ammunition by a person prohibited from owning or possessing a firearm (Pen. Code, §§ 12021 & 12021.1) and a collection of misdemeanors. He admitted a prior controlled substance felony conviction, probation was denied, and he was sentenced to the midterm of four years on the methamphetamine possession, with all other sentences running concurrently.
Jaime appealed, and we appointed counsel to represent him. Counsel did not argue against his client, but advised this court he could find no issues to argue on appellant's behalf - despite diligent efforts that included a motion to augment the record. Counsel filed a brief which set forth the facts of the case and the only points counsel could imagine would support an appellate issue: sufficiency of the evidence to support one of the misdemeanor charges and denial of probation. (People v. Wende (1979) 25 Cal.3d 436.)
Jaime was given 30 days to file written argument in his own behalf. That time passed and no brief was filed. It has now been almost 90 days since that time expired.
We have considered the sufficiency of the evidence point raised by counsel, and have scoured the record - including the transcript of trial testimony - for other possible issues. While Jaime complained about the quality of his representation (a Marsden motion completely devoid of any basis for substitution of counsel was properly denied), he said nothing that would indicate to us any possible basis of appeal.
Nothing in the record of the trial suggests impropriety. The stop of appellant's car was pretextual, but the law is abundantly clear that pretextual stops are permissible so long as the pretextual fact existed and would have supported a stop. Whren v. United States (1996) 517 U.S. 806. No one has ever questioned the fact appellant's registration tags were outdated, so no basis of appeal appears there.
The officers who concluded he was under the influence had sufficient training and experience to support such a conclusion, and appellant made damaging admissions that undermined any challenge to his arrest on that basis. The search warrant is facially sufficient and appears to have been properly served and executed. The contraband supporting appellant's conviction was found under circumstances that could reasonably be interpreted by a jury to indicate his possession and control of it. In short, the acquisition and sufficiency of the evidence underlying his guilt seems unassailable.
The trial court denied probation and sentenced him to state prison. But Jaime had previously been incarcerated in state prison and the trial court appears to have correctly interpreted Penal Code section 1203, subdivision (e)(4) to preclude probation in his case unless there were unusual circumstances, none of which come to mind here. (People v. Collier (1979) 90 Cal.App.3d 658, 661). It is impossible, on the facts of this case, to question the propriety of imposition of the presumptively appropriate midterm sentence to appellant.
We find ourselves in agreement with appellate counsel that there are no appellate issues with a reasonable prospect of success with respect to Jaime's guilt or the judgment imposed upon him. The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. RYLAARSDAM, J.
People v. Marsden (1970) 2 Cal.3d 118.