Filed 7/31/13 P. v. Maestas CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                              B246631

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. PA071591)
         v.

JOE GILBERT MAESTAS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Dalila Corral Lyons, Judge. Affirmed.


         Gerald Peters, under appointment by the Court of Appeal, for Defendant and
Appellant.


         No appearance for Plaintiff and Respondent.

                                             _________________________
       Defendant and appellant, Joe Gilbert Maestas, appeals from the judgment entered
following his plea of no contest to possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)) and his admission he previously had been convicted of burglary (Pen.
Code, § 459) within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d)). The trial court sentenced Maestas to four years in state
prison. We affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       1. Facts.1
       Foothill narcotics officer Wilcer Godoy has been a police officer for eight and a
half years. He has spent four and a half of those years “working narcotics” and has
received extensive training in the recognition and use of methamphetamine.
       At approximately 5:00 p.m. on September 29, 2011, Godoy and his partner were
on patrol on Telfair Avenue in Los Angeles County. As Godoy passed by a house on the
corner of Telfair and Kamloops, he saw Maestas leave through the rear door, get on a
bicycle and ride off. Police officers had previously obtained a search warrant for the
residence and Godoy decided to detain Maestas and execute the warrant. Approximately
five minutes later and three blocks from the house, Maestas was stopped by police
officers, detained and searched. He was then transported to the Foothill police station
and placed in a holding cell until approximately 11:00 p.m., when he was booked for
possession of methamphetamine. According to Maestas, at no time during that afternoon
or evening was he advised of his Miranda2 rights.
       In the meantime, several people at the residence were detained and Godoy asked
each of them “where each and every one of them reside[d].” After Maestas’s mother,
father and brother indicated Maestas slept in an upstairs bedroom which no one else had
access to, Godoy and his partner, Officer Llamas, entered the room to search it. When he

1
       The facts have been taken from the transcript of the preliminary hearing, the
probation report and the transcript of Maestas’s motion to suppress evidence.
2
       Miranda v. Arizona (1966) 384 U.S. 436.

                                              2
entered the room, Officer Llamas saw in “plain sight” on top of Maestas’s bed a “clear
plastic baggie containing a crystal-like substance resembling methamphetamine.” As the
officers continued to search the room, they found male clothing and photographs of
Maestas with a little girl and other family members.
       Godoy booked the baggie of a substance resembling methamphetamine into
evidence and submitted it to the laboratory for analysis. The lab report indicated the
baggie contained 1.08 net grams of a substance containing methamphetamine. It was
Godoy’s opinion 1.08 grams was a usable amount of the drug.
       2. Procedural history.
       Following a preliminary hearing, on November 23, 2011, an information was filed
charging Maestas with possession of methamphetamine in violation of Health and Safety
Code section 11377, subdivision (a), a felony. It was further alleged Maestas previously
had suffered a conviction for the serious or violent felony of burglary (Pen. Code, § 459)
within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)) and had served terms in prison for six offenses pursuant to Penal Code
section 667.5. Finally, it was alleged Maestas’s previous burglary conviction amounted
to a serious or violent felony pursuant to Penal Code section 1170, subdivision (h)(3).
       At proceedings held on November 30, 2011, Maestas indicated he wished to
represent himself. Although the trial court advised Maestas “self-representation is almost
always an unwise choice [and would] not work to his advantage,” that he would not be
helped “or treated with special leniency by the court or the prosecutor, and that he
[would] be held to the same standards of conduct as an attorney,” Maestas nevertheless
decided he wished to proceed in propria persona. After the trial court determined
Maestas “voluntarily and intelligently [chose] self-representation, and . . . knowingly,
intelligently, understandingly, and explicitly waive[d] his right to counsel,” the court
concluded Maestas was “competent to represent himself” and granted his motion for self-
representation.
       After granting Maestas a number of continuances, appointing for him a private
investigator and allocating funds for his use in his defense, the trial court set the next

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hearing date for February 2, 2012. Maestas was then granted further continuances.
However, on March 16, 2012, the trial court indicated a pre-trial conference and
Maestas’s motion to suppress evidence pursuant to Penal Code section 1538.5 would be
heard at proceedings to be held on April 19, 2012.
       On April 2, 2012, Maestas filed a handwritten motion to suppress evidence.
Maestas argued the warrant relied on by Godoy to search the house included only
occupants “ ‘on the property’ ” at the time. As Maestas was riding his bicycle several
blocks from the house, the warrant did not apply to him and he was unlawfully searched
and taken into custody. Moreover, the individuals at the house at the time of the search,
Maestas’s mother, father and brother, were never shown a copy of the warrant. Finally,
Maestas asserted there were no witnesses who saw the officers find the
methamphetamine “in an open room (access[i]ble to anyone).” This fact made the
“ ‘find’ suspicious.”
       In a response filed April 12, 2012, the People asserted all the items Maestas sought
to have suppressed had been obtained from inside his bedroom pursuant to a search
warrant issued on September 26, 2011. As Maestas has not challenged the warrant, “he
ha[d] provided no legal basis for the motion . . . .”
       At proceedings held on April 19, 2012, the trial court, after giving Maestas some
time to read the People’s response, heard Maestas’s motion made pursuant to Penal Code
section 1538.5. During the hearing, Maestas again indicated he was not at the house
during the search and, moreover, had “no expectation of privacy in the home because [he
and] the owner ha[d] . . . an agreement . . . .” Maestas had an “open-door policy” with
regard to his room.
       The People responded, under the circumstances he had presented, Maestas had no
standing to challenge the search as he was “disavowing any privacy interest or any
interest in the home where the [methamphetamine] was found.” Based on his lack of
standing and the validity of the warrant, there was no basis on which the trial court could
grant Maestas’s motion to suppress evidence.


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       The trial court denied Maestas’s motion “based on the grounds stated in the
People’s opposition,” specifically that it could be presumed the search warrant was valid
and Maestas lacked standing to attack it.
       After the trial court indicated it was denying his motion to suppress evidence,
Maestas indicated he was ready for trial but “need[ed] some witnesses pulled in.” The
trial court agreed to appoint for him a legal runner to serve subpoenas, then continued the
proceedings to May 10, 2012.
       On May 10, 2012, an amended information was filed alleging in count 3 that, on
or about September 29, 2011, Maestas unlawfully possessed methamphetamine in
violation of Health and Safety Code section 11377, subdivision (a), a felony. It was
noted that, “ ‘[c]onviction of this offense [would] require [Maestas] to register pursuant
to Health and Safety Code section 11590’ ” and “ ‘[f]ailure to do so [would be] a crime
pursuant to Health and Safety Code section 11594.’ ” It was further alleged Maestas
previously had suffered a conviction for a serious or violent felony, burglary (Pen. Code,
§ 459), within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)) and had suffered six prior felony convictions for which he served
prison terms pursuant to the provisions of Penal Code section 667.5, subdivision (b).
Finally, it was alleged as to count 3 “that an executed sentence for a felony pursuant to
this subdivision [must] be served in state prison pursuant to Penal Code section 1170[,
subdivision] (h)(3) in that . . . Maestas” had previously suffered a conviction for burglary,
a serious or violent felony within the meaning of Penal Code sections 1192.7 and 667.5,
subdivision (c).
       At a hearing held on May 10, 2012, Maestas’s request to “surrender pro-per status
[was] granted” and “the office of the deputy public defender [was] appointed as counsel”
for him.
       On June 26, 2012, count 1 of the information was dismissed in furtherance of
justice pursuant to Penal Code section 1385. Maestas then entered a plea of not guilty to
the allegation in count 3, that he had violated Health and Safety Code section 11377,
subdivision (a), and denied all the additional allegations.

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       After the trial court granted defense counsel several continuances, on August 31,
2012, counsel filed a motion requesting the court to dismiss in furtherance of justice (Pen.
Code, § 1385) Maestas’s 1987 conviction of burglary (Pen. Code, § 459) alleged pursuant
to the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Counsel argued Maestas’s present offense was neither “violent” nor “life-threatening”
and the alleged burglary was approximately 25 years old and committed when Maestas
was only 20 years old. In addition counsel asserted, since the prior burglary, Maestas
“ha[d] not sustained any more convictions for violent or serious offenses. Instead, his
record reflect[ed] parole violations, theft and drug possession and [a conviction for]
possession for [the] sale [of] marijuana. [Counsel further argued] [t]heft related offenses
are indicative of drug addiction.” Finally, counsel asserted Maestas’s most recent
conviction for “Child Molestation/Annoyance” in violation of Penal Code section 646.6,
subdivision (a) was a misdemeanor “and was inter-family as the victim [was] his
daughter.” Counsel added it was “noteworthy” that on the appropriate test, “[Maestas]
scored a 1, which [indicates] a low range of risk.” In conclusion, Maestas’s counsel
argued “[Maestas was] outside the spirit of the three strikes law given the age of his strike
prior, the fact . . . the strike prior is his only violent or serious conviction and [it is]
indicat[ed] . . . he has struggled with drug addiction for years.”
       On September 7, 2012, the People filed opposition to defense counsel’s motion in
which they emphasized Maestas’s lengthy criminal history. They asserted, in addition to
the burglary conviction alleged as a strike, Maestas had been convicted of seven
misdemeanors, the most recent of which occurred in October 2011 and was for
“molesting or annoying a child in violation of Penal Code section 647.6.” Further, in the
25 years since his strike prior, Maestas had spent 20 years and four months in state prison
and two years and 90 days in county jail. He had been returned to state prison seven
times for parole violations. Based on this record, it could not be said Maestas fell outside
the spirit of the Three Strikes sentencing scheme.
       At a hearing held on September 11, 2012, the trial court denied Maestas’s motion
to strike his prior burglary conviction based on the factors stated in the People’s

                                                 6
opposition. The trial court stated, “I think in this case the defendant is not outside the
spirit of the Three Strikes law.” The trial court then continued the matter to October 10,
2012.
        On October 10, 2012, the trial court indicated a disposition had been reached in
Maestas’s case. Maestas was to plead no contest to count 3, a violation of Health and
Safety Code section 11377, subdivision (a), and admit the prior burglary conviction
alleged pursuant to the Three Strikes law. He was to be sentenced to the midterm of two
years in prison for the drug offense which, as a result of the strike, would then be doubled
to four years. After waiving his right to a trial, his right to confront and cross-examine
the witnesses against him, his right to remain silent and his right to present a defense,
Maestas pleaded no contest to “possession of a controlled substance, methamphetamine,
in violation of Health [and] Safety Code [section] 11377[, subdivision] (a), a felony.”
Maestas then admitted previously having been convicted of burglary in violation of Penal
Code section 459, “a strike pursuant to Penal Code section[s] 1170.12[, subdivisions] (a)
through (d) and 667[, subdivisions] (b) through (i).”
        The trial court sentenced Maestas to the midterm of two years in state prison for
his conviction of possession of methamphetamine and an additional two years pursuant to
the Three Strikes law, for a total term of four years in state prison. The court awarded
Maestas presentence custody credits for 376 days actually served and 376 days of good
time/work time, for a total of 752 days. The trial court then ordered Maestas to pay a
$240 restitution fine (Pen. Code, § 1202.4, subd. (b)), a stayed $240 parole revocation
restitution fine (Pen. Code, § 1202.45), a $30 criminal conviction assessment (Gov. Code,
§ 70373), and a $40 court security fee (Pen. Code, § 1465.8, subd. (a)(1)).
        On December 5, 2012, Maestas filed a timely notice of appeal. He indicated his
appeal was based on the trial court’s denial of his Penal Code section 1538.5 motion to
suppress evidence, ineffective assistance of counsel and the propriety of the fines and
penalties imposed.




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                                   CONTENTIONS
      After examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent review of the
record.
      By notice filed April 30, 2013, the clerk of this court advised Maestas to submit
within 30 days any contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received to date.
                                REVIEW ON APPEAL
      We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)
                                    DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                       KLEIN, P. J.
      We concur:




             KITCHING, J.




             ALDRICH, J.




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