Filed 6/3/16 P. v. Ervin 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Lassen)
                                                            ----


THE PEOPLE,                                                                                  C079634

                   Plaintiff and Respondent,                                     (Super. Ct. No. CC031620)

         v.

MARCUS KHALANI ERVIN,

                   Defendant and Appellant.




         Appointed counsel for defendant Marcus Khalani Ervin has filed an 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. (People v. Wende (1979) 25 Cal.3d
436.) After reviewing the entire record, 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, 123-124.)
                                                  BACKGROUND
         In December 2013, defendant was an inmate at the California Correctional Center
(CCC) in Lassen County. Correctional Officers David Barker and Jake Wolcott were



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conducting random searches for contraband on inmates in the visiting room to prevent
drugs from being smuggled into the prison. The correctional officers noticed the inmates
were not being properly searched before entering the bathrooms. The correctional
officers went into the inmate restroom. When they entered they saw defendant sitting on
the toilet with his pants below his buttocks and his hands between his legs. It looked
suspicious to the officers because his pants were not where they would be if he were
actually using the toilet. The air also smelled strongly of marijuana. As the officers
moved toward defendant, he went to flush the toilet. Despite being ordered to put his
hands on his head and not flush, defendant started to press the toilet valve. The officers
pulled defendant off the toilet and down to the floor. As he was being handcuffed,
defendant said, “It’s not mine, I had nothing to do with it, it’s not mine.”
       Officer Barker looked in the toilet and saw seven blue bindles and five pieces of
plastic floating in the water. Officer Barker took photographs of the toilet and bathroom
and collected the items in the toilet. The officers took defendant to the Investigative
Services Unit (ISU) office, about 100 yards away. At that point, defendant claimed, “It’s
all mine, my wife had nothing to do with it. I take full responsibility.” At the ISU office,
Officer Wolcott noticed a small fleck of plastic or latex on defendant’s lip that was
similar to that which had been in the toilet. Officer Wolcott asked defendant what was on
his lip. Instead of answering, defendant licked his lip and swallowed the plastic.
       The blue bindles contained marijuana. The total net weight of the marijuana
without the packaging was 44.1 grams. The smaller pieces of plastic did not contain
marijuana, but Officer Barker surmised they might be used for packaging, as when
marijuana is sold in prison, it is sold in very small quantities, approximately half a gram.
A body search of defendant revealed he had a clear plastic latex type glove attached to his
penis with clear lubricant material. Defendant was placed on “potty watch,” but no other
evidence was discovered.



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       An information charged defendant with possessing marijuana while he was an
inmate in CCC. (Pen. Code, § 4573.6.) The information further alleged defendant had a
prior conviction for a serious or violent felony. A jury found defendant guilty as charged.
In bifurcated proceedings, defendant admitted the prior conviction.
       The trial court sentenced defendant to the middle term of three years, doubled due
to the prior conviction, for an aggregate term of six years, consecutive to his current term.
The trial court imposed a $330 restitution fine (Pen. Code, § 1202.4, subd. (b)), and
imposed and stayed an identical parole revocation fine (Pen. Code, § 1202.45). The trial
court found defendant indigent and waived the other fines and fees.
                                       DISCUSSION
       We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (People v. Wende, supra,
25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed,
and we received no communication from defendant.
       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.

                                                         NICHOLSON              , Acting P. J.

We concur:

      BUTZ                   , J.


      DUARTE                 , J.




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