Filed 6/21/13 P. v. Wesp CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047111

                   v.                                                  (Super. Ct. No. 12NF0103)

DONALD MITCHELL WESP,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, H.
Warren Siegel, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
                   Theodor S. Arnold, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.
                                          *                  *                  *
              A jury found defendant Donald Mitchell Wesp guilty of possession of
methamphetamine. In sentencing defendant, the court exercised its discretion pursuant to
Penal Code section 1385 and struck two of defendant‟s prior felony convictions. The
total sentence imposed by the court is five years in state prison.
              We appointed counsel to represent defendant on appeal. Counsel filed a
brief which set forth the facts of the case. Counsel did not argue against the client, but
advised the court no issues were found to argue on defendant‟s behalf. (People v. Wende
(1979) 25 Cal.3d 436.) Counsel did state there was a potential issue regarding whether
the police officer‟s testimony and the evidence he seized should have been suppressed.
              Defendant was given 30 days to file written argument in defendant‟s own
behalf. We received a handwritten document from defendant in which he lists various
legal issues such as “filing false police reports,” “fabricating evidence” or “false arrest.”
Taken as a whole, the document appears to accuse defendant‟s trial lawyer of
incompetence since there are various notations about “frivolous motions to suppress,”
“fabricating evidence with prosecutor,” “she would not do as told she would not mention
anything about evidence that would defend me nothing” and “using a pack of sugar to
mislead the jury an stating I had a prior. Misleading the jury.”
              Prior to trial in this case, the court conducted a motion to suppress
evidence. Fullerton Police Officer Kevin Kirkreit testified he was patrolling a high crime
area around the parking lot of a motel on Raymond Street in Fullerton on January 9, 2012
with another officer when he made contact with defendant. Kirkreit asked defendant how
he was doing, and then Kirkreit and defendant conversed. Kirkreit asked defendant
whether he would mind being searched for weapons or drugs, and defendant said he did
not mind. Kirkreit found .1 gram of methamphetamine on defendant‟s person, an amount
the officer said was useable.
              The question of the voluntariness of a consent to search is to be determined
in the first instance by the trier of fact. “„“The power to judge credibility of witnesses,

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resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in
the trial court. On appeal all presumptions favor proper exercise of that power, and the
trial court‟s findings—whether express or implied—must be upheld if supported by
substantial evidence.” [Citation.]‟ [Citations.]” (People v. Siripongs (1988) 45 Cal.3d
548, 566-567.) “In determining whether, on the facts so found, the search or seizure was
reasonable under the Fourth Amendment, we exercise our independent judgment.
[Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
              The trial court denied the motion to suppress. We conclude substantial
evidence supports the trial court‟s finding that consent to search was freely and
voluntarily given.
              To establish a claim of ineffective assistance of counsel, a defendant must
establish both counsel‟s representation fell below an objective standard of reasonableness
and it is reasonably probable that, but for counsel‟s error, the result of the proceeding
would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-688.)
Here we have combed the record and note defense counsel raised appropriate legal issues
to the court, more than adequately cross-examined witnesses and presented competent
arguments. Under the circumstances we find in this record, we cannot conclude defense
counsel was ineffective in representing defendant.
              The judgment is affirmed.


                                                  MOORE, J.
WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.


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