Filed 5/30/13 P. v. Withers CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056969

v.                                                                       (Super.Ct.No. SWF1102757)

BRADLEY JAY WITHERS,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge.

Affirmed.

         Kevin Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant Bradley Jay Withers is serving four years and eight months after a jury

convicted him of possessing methamphetamine and a hypodermic needle, and the trial

court found true he had two prior offenses, including a strike. As discussed below, we

affirm the conviction.

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                                 FACTS AND PROCEDURE

       On November 6, 2011, sometime after 9:30 p.m., Hemet Police Officer McNish

arrested defendant at a motel in Hemet known for drug use and prostitution. Outside on

the ground under the open bathroom window of the motel room where defendant and

another person were, police found plastic bags containing methamphetamine, a syringe,

and a scale. Inside the motel room they found a tin containing another scale and another

plastic bag containing methamphetamine. Inside defendant’s car, officers found another

syringe and a scale similar to the one found in the motel room.

       On November 9, 2011, the People filed a felony complaint alleging defendant

possessed methamphetamine for sale (Health & Saf. Code, § 11378) and possessed a

hypodermic needle (Bus. & Prof. Code, § 4140). The People also alleged defendant had

two prison priors (Pen. Code, § 667.5, subd. (b)) and a “strike” prior (Pen. Code, §§ 667,

subds. (c) &(e)(1), and 1170.12, subd. (c)(1).1

       After the preliminary hearing held on January 19, 2012, the trial court held

defendant to answer.

       On January 31, 2012, the People filed an information charging defendant, as in the

complaint, with possessing methamphetamine for sale, possessing a hypodermic needle,

and with the two prison priors and the strike prior.



       1 The prior convictions were for robbery (Pen. Code, § 211) in 2003, for which he
was sentenced to two years, and twice violated parole, and felony drug possession in
2007, for which he was sentenced to 32 months and violated parole once. Defendant
suffered a number of other convictions between 1998 and 2011.


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       At trial, Officer McNish testified as follows. McNish pulled into the motel

parking lot and saw defendant standing in front of one of the rooms. McNish saw

defendant make eye contact with him, defendant’s “eyes began to widen,” defendant

“reached into the pockets of his pants and ran into” the motel room. McNish testified

that, “Based on . . . his movements, he appeared to be nervous and wanting to quickly get

away from my location.” McNish parked the car and called for backup.

       McNish went to the motel room, knocked loudly on the door, stated he was a

police officer and told the occupants to open the door. He could hear voices of a man and

a woman. A woman answered the door. The officer knew the woman from previous

contacts and he believed she was on probation or parole. McNish asked to enter the room

and the woman gave permission. He saw defendant coming from the back of the room,

but did not see him exit the bathroom, although he suspected defendant had come from

the bathroom. McNish handcuffed defendant, but told him he was not under arrest and

would be released from the handcuffs once police backup arrived. McNish did so when

backup arrived.

       McNish went into the bathroom and saw that the window to the outside was open.

He looked outside and saw on the ground some plastic bags, a syringe and a scale.

McNish went outside and recovered the items, then came back inside and found another

scale and plastic bag inside the nightstand.




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       McNish placed defendant under arrest and gave him the Miranda2 warnings.

Upon questioning, defendant told McNish that the items found outside the bathroom

window belonged to him, that he had thrown them out because he “got nervous” and

accurately described the items. Defendant stated he had been selling methamphetamine

for not very long, and only to provide for his family.

       A police criminologist testified that she tested three of the five plastic bags that

had been retrieved, and found that they contained methamphetamine.

       Defendant testified on his own behalf and told a different version of events than

did Officer McNish. He stated he had just arrived at the motel at the same time as

Officer McNish, and was meeting his girlfriend there. He had just walked to the back of

the room when McNish knocked, and had not been in the bathroom at all. Defendant

testified that the officer handcuffed him and put him into the squad car, but not under

arrest, for 30 minutes while he searched the motel room. Defendant testified that he

never admitted the items found on the ground were his and never admitted that he was

selling methamphetamine, and in fact he was not selling methamphetamine. After

McNish arrested defendant, he searched defendant’s car and found the scale and

hypodermic needle. Defendant testified that he stated the items were his only after the

officer told defendant that his wife would be arrested.

       Defendant testified that he did not receive the Miranda warnings until after he was

taken to the police station. After receiving the warnings, defendant said that the scale and


       2   Miranda v. Arizona (1966) 384 U.S. 436.


                                              4
hypodermic needle in the vehicle belonged to him. Defendant testified that he was a drug

user and kept the items in the vehicle for his personal use.

       The jury acquitted defendant of possessing methamphetamine for sale, but

convicted him of the lesser included offense of simple possession (Health & Saf. Code, §

11377, subd. (a)) and misdemeanor possession of a hypodermic needle. Defendant

admitted the prior convictions. The trial court denied defendant’s Romero3 motion and

sentenced him to four years and eight months as follows: the low term of 16 months for

possession, doubled to 32 months for the strike, plus two years for the prison priors. The

six-month misdemeanor sentence was to be served concurrently. This appeal followed.

                                        DISCUSSION

       Upon defendant’s request, this court appointed counsel to represent him. Counsel

has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders

v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a

statement of the case, a summary of the facts, and potential arguable issues and

requesting this court to conduct an independent review of the record.

       One of the potential arguable issues that counsel suggests is whether Officer

McNish’s entry into the motel room was unlawful under the Fourth Amendment to the

United States Constitution. Specifically, before he knocked on the door and demanded

entry, the officer was not aware of any crime taking place in the room and did not know

the identity of either of the occupants, and so did not know that the female occupant was


       3   People v. Romero (1996) 13 Cal.4th 497.


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on parole or probation and thus required to consent to entry and search. However, as

appellate counsel points out, trial counsel did not raise this issue in the trial court and so

has waived it on behalf of defendant. (Evid. Code, § 353.)

       We offered defendant an opportunity to file a personal supplemental brief, but he

has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we

have independently reviewed the record for potential error and find no arguable issues.

                                            DISPOSITION

       The judgment of conviction is affirmed.

       NOT TO BE PULBISHED IN OFFICIAL REPORTS

                                                                  RAMIREZ
                                                                                           P. J.


We concur:

McKINSTER
                           J.

CODRINGTON
                           J.




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