Filed 7/21/14 P. v. Nichols CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040602
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1234709)

         v.

CHRISTOPHER REED NICHOLS,

         Defendant and Appellant.


         Defendant Christopher Reed Nichols pleaded no contest to a count of possession
of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)),1 a count of possession of
ammunition by a felon (§ 30305, subd. (a)(1)), and a count of possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)). On appeal, defendant’s
counsel has filed an opening brief in which no issues are raised and asks this court for an
independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436
(Wende). Counsel has declared defendant was notified an independent review under
Wende was being requested. We notified defendant of his right to submit written
argument on his own behalf within 30 days. The 30-day period has elapsed, and we have
not received a written response from defendant.
         Pursuant to Wende, we reviewed the entire record and found no arguable issues.
We will therefore provide “a brief description of the facts and procedural history of the


         1
             Further unspecified statutory references are to the Penal Code.
case, the crimes of which the defendant was convicted, and the punishment imposed.”
(People v. Kelly (2006) 40 Cal.4th 106, 110 (Kelly).)
                       FACTUAL AND PROCEDURAL BACKGROUND
       The Offense
       On May 8, 2012, Santa Clara County Sheriff’s Deputies Tyler Fleckner and Ryan
Schaefers stopped a car while patrolling the Santa Cruz mountains after observing it had
cracks on the front windshield and a broken brake light. Fleckner asked defendant, who
was the driver, for his license, registration, and insurance. The sole passenger in the car
was Danny Jose Abellera.
       Some time after initiating the traffic stop, Fleckner noticed an odor of marijuana
coming from the car’s interior. Fleckner asked defendant if he had marijuana inside the
car, and defendant asserted he did not. Abellera said he had marijuana in his pocket.
Fleckner checked to see if either defendant or Abellera had outstanding warrants, which
they did not.
       Fleckner then asked defendant and Abellera to step outside the car and conducted
a search. Fleckner found marijuana inside Abellera’s pocket and did not find anything on
defendant. Fleckner still smelled marijuana emanating from the car, so he proceeded to
search the car’s interior. He found a container wedged between the seat and center
console containing a white crystalline substance, which tested presumptively positive for
methamphetamine. After continuing the search, Fleckner found two rifle magazines
loaded with bullets. He also found a black plastic rifle case with a rifle inside in the car’s
compartment area.2




       2
        Because the car was a Jeep, there was no physical separation between the driver
and cargo areas of the car.

                                              2
       Procedural Background
       On October 4, 2012, the district attorney filed an information charging defendant
with possession of a firearm by a felon (§ 29800, subd. (a)(1)), possession of ammunition
by a felon (§ 30305, subd. (a)(1)), and possession of methamphetamine (Health & Saf.
Code, § 11377, subd. (a)). It was further alleged defendant had a prior conviction (§
667.5, subd. (b)).
       Defendant filed a motion seeking discoverable materials pursuant to Pitchess v.
Superior Court (1974) 11 Cal.3d 531, 535. The court granted the motion and conducted
an in camera hearing. Following the hearing, the court ordered certain records released
under a protective order.
       On April 23, 2013, defendant filed a motion to suppress evidence pursuant to
section 1538.5, arguing the evidence seized during the search of the car was the result of
an illegal search and seizure. Initially, defendant sought to call Abellera to testify about a
statement he made while stopped by the officers the day of the arrest. Abellera asserted
his Fifth Amendment right against self-incrimination, and defendant chose not to call him
to testify during the hearing.
       Later, defendant sought to introduce Abellera’s statement by calling an
investigator from the public defender’s office to testify. Defendant asserted Abellera told
the investigator he gave one of the deputies a medical marijuana card during the
encounter. Defendant contended Abellera’s statement would be admissible as a
statement against penal interest under Evidence Code section 1230.3 The trial court


       3
         “Evidence of a statement by a declarant having sufficient knowledge of the
subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a
witness and the statement, when made, was so far contrary to the declarant’s pecuniary or
proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so
far tended to render invalid a claim by him against another, or created such a risk of
making him an object of hatred, ridicule, or social disgrace in the community, that a
(continued)
                                               3
concluded Abellera’s statement would not be admissible as a statement against penal
interest, because his comment about giving deputies a medical marijuana card was
exculpatory, not incriminating.
       Defendant then asked the court if it would revisit its finding of privilege and allow
Abellera to testify on the limited issue of whether he presented deputies with a medical
marijuana card during the encounter. The court declined, concluding that “even
[Abellera’s] admission that he was there is a step in the chain towards criminality when
there were contraband items found in the vehicle.”
       Defendant asked the court to consider granting Abellera judicial immunity. The
court declined. Subsequently, the court denied defendant’s motion to suppress,
concluding there was a basis for the initial traffic stop due to the Vehicle Code violations,
and the smell of the marijuana emanating from the car constituted sufficient probable
cause to search the car’s interior.
       On August 22, 2013, defendant pleaded no contest to a count of possession of a
firearm by a felon (§ 29800, subd. (a)(1)), a count of possession of ammunition by a felon
(§ 30305, subd. (a)(1)), and a count of possession of methamphetamine (Health & Saf.
Code, § 11377, subd. (a)). The People moved to dismiss the allegation of defendant’s
prior conviction, which the court granted.
       On January 10, 2014, the trial court suspended imposition of sentence and
imposed probation for a period of three years, subject to various terms and conditions,
including a term of six months in county jail. Defendant was also ordered not to possess
or consume illegal controlled substances or knowingly go to places where illegal
controlled substances are the primary item of sale. The trial court imposed a restitution
fine of $240 plus a 10 percent administration fee pursuant to section 1202.4, a matching


reasonable man in his position would not have made the statement unless he believed it to
be true.” (Evid. Code, § 1230.)

                                              4
$240 probation revocation restitution fine suspended pursuant to section 1202.44, a $50
criminal laboratory analysis fee plus penalty assessments, a $150 drug program fee plus
penalty assessments, and a $70 AIDS education fine plus penalty assessments. The court
also ordered defendant pay a $120 court security fee, a $90 criminal conviction
assessment fee, a $259.50 criminal justice administration fee, and a $40 per month
probation supervision fee. Defendant was awarded four days of custody credits,
consisting of two actual days plus two days conduct credit.
                                       DISCUSSION
       Pursuant to Wende, supra, 25 Cal.3d 436 and Kelly, supra, 40 Cal.4th 106, we
have independently reviewed the entire record, including the sealed transcript of the
Pitchess hearing, and have found no arguable issues on appeal.
                                      DISPOSITION
       The judgment is affirmed.



                                                              Premo, Acting P.J.


       WE CONCUR:



              Elia, J.



              Mihara, J.




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