Filed 8/17/15 P. v. Lynall CA6

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


                                      SIXTH APPELLATE DISTRICT



THE PEOPLE,                                                          H041737
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F27697)

         v.

DAVID LEE LYNALL,

         Defendant and Appellant.



         Defendant David Lee Lynall was convicted by plea of one count of possession of
methamphetamine (Health & Saf. Code, § 11377). (Unless otherwise stated, all further
statutory references are to the Health and Safety Code.) The offense was originally
charged as a felony. One month after the complaint was filed, the voters enacted
Proposition 47, “the Safe Neighborhoods and Schools Act” (hereafter Proposition 47),
which made certain drug- and theft-related offenses—including violations of
section 11377—misdemeanors, unless the offenses were committed by certain ineligible
defendants. Two days after the election, the parties entered into a negotiated disposition
of defendant’s case. Pursuant to their agreement, defendant’s offense was reduced to a
misdemeanor and defendant pleaded guilty to one count of violating section 11377. In
exchange for defendant’s plea, two other misdemeanor offenses and an enhancement
allegation that were charged in the complaint were dismissed. The court suspended
imposition of sentence and imposed a 24-month conditional sentence that required
defendant to complete a Proposition 36 drug treatment program.
       We appointed counsel to represent defendant in this court. Appointed counsel
filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), which
stated the case and the facts, but raised no specific issues on appeal. We notified
defendant of his right to submit written argument on his own behalf within 30 days. The
30 days have elapsed, and we have received no written argument from defendant. We
will conclude there is no arguable issue on appeal and we will affirm the judgment.

                                          FACTS


       Our statement of the facts is based on evidence presented at the preliminary
hearing. In September 2014, Santa Cruz County Sheriff Deputy Stephen Ragusano
received a complaint from a motorcycle shop that several people were camping illegally
in the wooded ravine behind the shop and “leaving feces in that area.” Deputy Ragusano
met with the reporting party, who showed him an area adjacent to the shop’s parking lot
where the campers were located. According to Deputy Ragusano, it was not a public
camp ground and no one was allowed to camp there. The reporting party asked Deputy
Ragusano to patrol the area and to ask the campers to “move along.”
       On October 1, 2014, at night, Deputy Ragusano chased a suspect in a “strong-
armed robbery” into the wooded area behind the motorcycle shop and lost contact with
him. On October 5, 2014, Deputy Ragusano and two other deputies patrolled the wooded
area. Deputy Ragusano saw three tents in a clearing in the ravine. The deputies
announced their presence and asked the campers to come out of their tents. Defendant
emerged from one of the tents. Deputy Ragusano testified that defendant resembled the

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robbery suspect he had chased into the ravine a few days earlier. Deputy Ragusano asked
defendant for his name and date of birth, which defendant provided. Deputy Ragusano
then asked his dispatcher to run a status check to determine whether defendant had any
warrants. The dispatcher reported that defendant was a “parolee at large,” which means
defendant had absconded from parole supervision. The dispatcher also reported that
there was an active parole warrant for his arrest. Deputy Ragusano confirmed the
warrant, placed defendant in handcuffs, and then searched his tent.
       Inside the tent, Deputy Ragusano found: (1) a glass pipe with burn marks, (2) a
“loaded syringe” with a liquid substance that tested presumptively positive for
methamphetamine; (3) a small glass container with a wet cotton swab inside that tested
presumptively positive for methamphetamine, (4) three knives, and (5) a 15-inch billy
club. Deputy Ragusano testified there was a usable amount of methamphetamine both in
the syringe and on the cotton swab.
       Parole Agent Jeffrey Clark testified that on October 5, 2014, defendant was on
active parole with search terms, that defendant had absconded from parole in Pasadena,
and that a court had issued a parole warrant for his arrest on September 17, 2014.

                                PROCEDURAL HISTORY


       In October 2014, the prosecution filed a complaint that charged defendant with
one felony count of possession of methamphetamine (§ 11377, count 1), with an
enhancement allegation that defendant had served two prior prison terms (Pen. Code,
§ 667.5, subd. (b)). The prosecution also charged defendant with one misdemeanor count
of unlawful possession of a billy club (Pen. Code, § 22210, count 2) and one
misdemeanor count of possession of an injection or smoking device (§ 11364.1, subd. (a),
count 3).
       Initially, defendant pleaded not guilty to all counts and denied the enhancement
allegation. Defendant then filed a motion to suppress the evidence obtained in the search

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of his tent. The prosecution opposed the motion, arguing that prior to the detention and
search, Deputy Ragusano had learned that defendant was a parolee at large and there was
a warrant for his arrest.
       On November 4, 2014, the court conducted a preliminary hearing. The court also
took evidence and heard argument on the motion to suppress. At the end of the
preliminary hearing, the court held defendant to answer to the charges and denied the
motion to suppress. The parties then stipulated that the complaint would serve as the
information and defendant was arraigned on the information. Defendant pleaded not
guilty to all counts and denied the enhancement allegation.
       At the preliminary hearing, the court observed that if Proposition 47 passed in the
general election that day, then section 11377 would be amended prospectively the
following day. Under a proposed amendment in Proposition 47, a violation of
section 11377 would be reduced from a “wobbler”—a crime that is punished alternatively
as a felony or a misdemeanor—to a misdemeanor. The court set the matter, along with
three other cases defendant had pending,1 for a trial setting conference on November 6,
2014, two days after the election.
       At the trial setting conference, the parties entered into a negotiated disposition.
Both counsel agreed that in light of the passage of Proposition 47, the felony charged in
count 1 (possession of methamphetamine, § 11377) “is now, by operation of law, a
misdemeanor.” The court amended the information to reflect “Count 1, as a
misdemeanor, pursuant to Proposition 47,” and struck the enhancement allegation.



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         The court also set (1) misdemeanor case No. M81505, in which defendant was
charged with petty theft (Pen. Code, § 484) at a grocery store, for trial setting;
(2) misdemeanor case No. M27331, in which defendant was convicted of domestic
violence (Pen. Code, § 273.5), for “probation violation setting,” and (3) felony case
No. F26937, in which defendant was convicted of possession of controlled substances
(§ 11377), for “probation violation setting.”

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Defendant pleaded guilty to count 1. On the prosecution’s motion, the court dismissed
the misdemeanor charges in counts 2 and 3.
       On November 6, 2014, defendant also pleaded guilty in the petty theft case (case
No. M81505), and the court found probation violations in the other two cases (case
Nos. M27331 and F26937) based on defendant’s conviction in this case.
       The court suspended imposition of sentence and imposed a 24-month conditional
sentence with Proposition 36 probation. As conditions of probation, the court ordered
defendant not to camp illegally—which the court stated was part of obeying all laws—
and to stay away from the motorcycle shop. The court also ordered defendant not to
possess drugs or drug paraphernalia, not to drink alcohol, and to submit to drug and
alcohol testing. The court advised defendant that he was subject to search and seizure
without a warrant for such items. The court ordered defendant to (1) enroll in and
complete an AIDS education awareness program, (2) enter and complete a second course
of “Prop 36 treatment,” and (3) register as a narcotics offender pursuant to section 11590.
       The court also ordered defendant to pay fines and fees totaling $1395 at the rate of
$40 per month. The fines and fees included: (1) a $150 restitution fine (Pen. Code,
§ 1202.4); (2) a $150 probation revocation restitution fine, which the court stayed
pending successful completion of probation (Pen. Code, § 1202.44); (3) a $615 drug
program fine (§ 11372.7); (4) a $205 lab fee (§ 11372.5); (5) a $205 AIDS fine (§ 11377,
subd. (c); Pen. Code, § 1463.23); (6) a $30 court facility fee (Gov. Code, § 70373); and
(7) a $40 security fee (Pen. Code, § 1465.8, subd. (a)(1)). The amounts imposed for the
drug program fine, the lab fee, and the AIDS fine included penalty assessments.

                                       DISCUSSION


       Defendant’s appointed counsel has filed an opening brief pursuant to Wende,
supra, 25 Cal.3d 436, which stated the case and the facts, but raised no specific issues on
appeal. We have independently reviewed the entire record pursuant to Wende. Based

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upon that review, we conclude there is no arguable issue on appeal and we will therefore
affirm the judgment.

                                     DISPOSITION


      The judgment is affirmed.




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                      _______________________________
                      Márquez, J.




WE CONCUR:




______________________________
 Rushing, P. J.




______________________________
 Grover, J.
