Filed 6/24/15 P. v. Lute 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H041187
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS121672A)

         v.

ROSHAUWNDA DENISE LUTE,

         Defendant and Appellant.


         Defendant Roshauwnda Denise Lute pleaded no contest to possession for sale of
methamphetamine and admitted a prior felony drug conviction. The court suspended
imposition of sentence and placed Lute on three years’ probation. Lute violated the
conditions of her probation several times over the ensuing six months. As a result of
those admitted violations, the court revoked her probation and sentenced her to six years
in county jail.
         Lute’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. We notified Lute of her right to submit a written argument on her own
behalf, but she has not done so.
         Pursuant to Wende, we reviewed the entire record and have concluded that there
are no arguable issues on appeal. As required by People v. Kelly (2006) 40 Cal.4th 106,
110, we will provide “a brief description of the facts and procedural history of the case,
the crimes of which defendant was convicted, and the punishment imposed.” We will
further include information about aspects of the trial court proceedings that might become
relevant in future proceedings. (Id. at p. 112.)
I.     FACTUAL AND PROCEDURAL BACKGROUND1
       Shortly after midnight on September 4, 2012, Nicholas Borges, a sergeant with the
Seaside Police Department in Monterey County, observed Lute getting into a vehicle at
the intersection of Mingo Avenue and Soto Street in Seaside. Police had received citizen
complaints about drug sales in the area and Borges was aware of two drug houses in the
immediate area. Borges pulled up behind the vehicle, turned on his spotlight, and
approached the vehicle. The driver told Borges he was giving Lute, who he knew only as
“Baby,” a ride. Borges recognized Lute from prior encounters. The driver’s pupils were
dilated and he appeared to be trying to conceal something under his seat. After other
officers arrived, the driver and Lute were asked to exit the vehicle.
       Lute consented to a search of her purse, in which officers found a digital scale
with flakes of a white substance on it. Officers confirmed there was an active
misdemeanor arrest warrant for Lute. They placed her under arrest and asked her if there
was anything illegal on her person. Lute said she had a pipe, which officers found
sticking out of the front of her waistband. Sergeant Borges testified the pipe was a
homemade pipe of the sort used to smoke methamphetamine. Officers observed a baggie
sticking out of the front of Lute’s shirt. She was moving her chin in an apparent attempt
to retrieve the bag with her mouth. Inside the baggie were two smaller baggies
containing a total of 2.7 grams of a substance that testing confirmed was crystal
methamphetamine, three pills that testing showed was ecstasy, and six pills Borges
identified as Oxycontin. When Lute was booked at the jail, $40 in cash was found in her
bra. Borges opined Lute possessed the drugs for purposes of sale based on Lute’s

       1
       The factual background is taken from Sergeant Borges’s testimony at Lute’s
September 13, 2012 preliminary hearing and from the probation officer’s report.


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possession of a digital scale that appeared to have methamphetamine on it, the fact that
the methamphetamine was in two baggies, his knowledge of Lute’s criminal history
involving drug possession and sale, and the cash found in Lute’s bra.
       The Monterey County District Attorney filed an information on September 14,
2012, charging Lute with one count of possession for sale of methamphetamine and
ecstasy (Health & Saf. Code, § 11378, count 1); one count of possession for sale of
Oxycontin (id., § 11351, count 2); and one count of misdemeanor possession of drug
paraphernalia (id., former § 11364.1, subd. (a), count 3). In connection with the two
felony counts, three prior drug convictions were alleged as enhancements pursuant to
section 11370.2 of the Health and Safety Code and prior prison terms resulting from
those convictions were alleged as enhancements under Penal Code section 667.5,
subdivision (b).
       Lute unsuccessfully moved to dismiss counts 1 and 2 under Penal Code section
995, arguing there was insufficient evidence of her intent to sell the drugs found in her
possession.
       Lute pleaded no contest to count 1 and admitted one prior drug conviction. On
December 13, 2012, the court suspended imposition of sentence and placed Lute on
probation for a period of three years, subject to various conditions. Lute’s probation
conditions included requirements that she report any change of residence to her probation
officer within 24 hours and not associate with any individuals she knew or had reason to
know were on any form of probation or parole supervision. The court ordered Lute to
report to her probation officer by 9:00 a.m. on December 14, 2012.
       Lute failed to timely report to her probation officer and when she did report she
tested presumptive positive for the use of amphetamine. Accordingly, she was taken into
custody. At a December 20, 2012 hearing, Lute admitted to violating the terms of her
probation. On January 22, 2013, her probation was revoked, reinstated, and modified and
she was released from custody. In February 2013, Lute was taken into custody again, this

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time for associating with a probationer. She admitted that probation violation on March
5, 2013, at which time her probation was once again revoked, reinstated, and modified.
       On June 4, 2013, Lute admitted to multiple probation violations, including using
methamphetamine, failing to report a change of address, failing to enroll in an outpatient
program, and associating with probationers. At that time, Lute’s probation was revoked.
On August 15, 2013, her probation was terminated and she was sentenced to six years in
Monterey County Jail pursuant to Penal Code section 1170, subdivision (h). The six year
term consisted of the upper term of three years for possession of methamphetamine for
sale in violation of Health and Safety Code section 11378 and a consecutive three-year
term for her admitted prior felony drug conviction (the Health and Safety Code section
11370.2 enhancement).
       Lute failed to timely appeal, but this court granted her motion for relief from
default.
II.    DISCUSSION
       Having examined the entire record, we conclude that there are no arguable issues
on appeal.
III.   DISPOSITION
       The judgment is affirmed.




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                                                            Walsh, J.*




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




      *
        Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
