People
v.
Marchan

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWOMar 7, 2017
E065847 (Cal. Ct. App. Mar. 7, 2017)

E065847

03-07-2017

THE PEOPLE, Plaintiff and Respondent, v. RAFAEL MARCHAN, Defendant and Appellant.

Daniel Yeager, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1500859) OPINION APPEAL from the Superior Court of Riverside County. Jerome E. Brock. (Retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Daniel Yeager, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Defendant and appellant, Rafael Marchan, pled guilty to possession of methamphetamine for sale (count 1; Health & Saf. Code, § 11378) and possession of drug paraphernalia (count 2; Health & Saf. Code, § 11364). Defendant additionally admitted he had suffered a prior strike conviction. (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) The court sentenced defendant to the indicated sentence of 32 months' imprisonment.

The court imposed the sentence in another case concurrently to the sentence it imposed in the instant case.

After defendant filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and identifying one potentially arguable issue: whether defense counsel provided prejudicial IAC for failing to move to suppress the evidence obtained from a search of defendant's cell phone. We affirm.

The court granted defendant's request for a certificate of probable cause premised on counsel's ineffective assistance of counsel for failing to file a motion to suppress the evidence obtained from a search of defendant's cell phone.

Appellate counsel has filed a separate petition for writ of habeas corpus, case No. E067113, addressing this issue. We resolve the petition by separate order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant and defense counsel stipulated that the preliminary hearing transcript would provide the factual basis for the plea. The People did not participate in the plea; rather, it appears the court gave defendant an indicated sentence, off the record, if defendant pled to the sheet in the current case, entered a plea in another case, and an admission in yet another.

On November 15, 2012, defendant pled guilty to active participation in a criminal street gang (People v. Marchan, Riverside Superior Court case No. SWF1201848). (Count 2; Pen. Code, § 186.22, subd. (a).) Pursuant to his plea agreement, the court granted defendant formal probation with various terms and conditions, including a search term requiring that he submit to a search of his person, home, and personal property.

On September 11, 2015, the People filed a felony complaint charging defendant with possession of methamphetamine for sale (count 1; Health & Saf. Code, § 11378) and possession of drug paraphernalia (count 2; Health & Saf. Code, § 11364). The People additionally alleged defendant had suffered a prior strike conviction. (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) The complaint also served as a petition for revocation of defendant's probation, as the People maintained that by defendant's commission of the offenses he had violated his probation in his previous case.

The allegation that the offenses constituted a violation of defendant's probation in the previous case does not appear to have been resolved by the plea. --------

At the preliminary hearing on February 9, 2016, an officer testified that he conducted a probation compliance search of defendant's residence as part of a task force. One of the officers found a plastic baggie in defendant's bedroom on the nightstand containing a white, powdery, crystalline substance. It tested positive for methamphetamine.

The bag was later weighed at 24.5 grams, which is considered a "substantial amount of methamphetamine." On the same nightstand they found defendant's wallet, photo identification, cell phone, and a methamphetamine pipe.

One of the officers looked at the texts on the cell phone which had occurred over the course of the past week. One of the names used in the text conversations was "Rafa," short for "Rafael," defendant's first name. There were text exchanges on the phone which led the officers to believe defendant was selling methamphetamine, including one query as to whether "$200 would get them a whole, which [defendant] advised it would almost get them a whole." In the officer's expert opinion, a "whole" referred to a measurement of methamphetamine. There were a couple of other texts which appeared to reference sales of methamphetamine.

No scales, cutting tools, cutting agents, pay-owe sheets, large amounts of cash, or baggies were found in the room. The officer opined "that the possession of that amount of methamphetamine was for the purpose of sales." The officer testified that that amount of methamphetamine is not typically held just for personal use; every gram can be broken into up to 10 separate dosages. On cross-examination, the officer conceded that although 24.5 grams is "a large quantity of methamphetamine," it could conceivably be used by one individual over the course of two to three weeks.

After the court held defendant to answer, defendant pled guilty as charged. The court sentenced defendant to the agreed upon, low term of 32 months' imprisonment on count 1.

II. DISCUSSION

We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER


J. We concur: RAMIREZ


P. J. HOLLENHORST


J.