Filed 1/25/16 P. v. Solchaga CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F070360
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 14CM8561)
                   v.

ROGER TOLENTINO SOLCHAGA,                                                                OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Robert S.
Burns, Judge.

         Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Office of the State Attorney General, Sacramento, California for Plaintiff and
Respondent.
                                                        -ooOoo-




         *Before Franson,       Acting P.J., Peña, J. and Smith, J.
                      PROCEDURAL AND FACTUAL SUMMARY
       Defendant Roger Tolentino Solchaga was charged in an information with knowing
possession of marijuana and methamphetamine while incarcerated in Avenal State Prison
(Pen. Code, § 4573.6, count 1).1 The information further alleged defendant had a prior
conviction for second degree murder within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)). At the conclusion of a jury trial on August 7,
2014, defendant was convicted of the allegation and the prior serious felony conviction
was found true. On October 14, 2014, the trial court sentenced defendant to the upper
term of four years, doubled to eight years pursuant to the three strikes law. Defendant’s
sentence was ordered to be served consecutively to the term he was serving when he
committed the instant offense.
       Appellate counsel has filed a brief seeking independent review of the case by this
court pursuant to People v. Wende (1979) 25 Cal.3d 436.
                                             FACTS
PROSECUTION EVIDENCE
       Correctional Officer Alejandro Huerta was on duty at Avenal State Prison on
December 18, 2012, conducting a random search of Dormitory 18 in Housing Unit 120
Facility A with his partner Officer Vargas. When Huerta entered the dormitory,
defendant was eating by his bed. Defendant removed his clothing and handed it to
Huerta. Huerta conducted an unclothed body search of defendant.
       In the waistline of the shorts defendant was wearing, Huerta felt a couple of
lumps. In a pocket inside the waist of the shorts, sewn in and secured by a safety pin,
Huerta found four inmate-manufactured bindles. Three of the bindles were in latex, the
fourth was in clear plastic wrap. When asked about the bindles, defendant said they
might contain methamphetamine. Defendant was arrested and the suspected contraband
was placed in an evidence locker.

       1Unless   otherwise designated, further statutory references are to the Penal Code.

                                                 2.
       Correctional Lieutenant Kenneth Raymond Clinton investigated the incident and
talked to defendant. When asked what Huerta found inside defendant’s shorts, defendant
replied, “it’s probably dope.” This is a common term referring to narcotics. Clinton
explained that sometimes an inmate will hold narcotics for another inmate so the second
inmate does not get caught with contraband. Sometimes inmates hold contraband for
each other to repay a debt.
       Defendant refused to provide a urine test when Officer Michael Ferree attempted
to obtain it. Lorna Trembley, a licensed vocational nurse, examined defendant and
located a puncture mark under his skin that was likely left by a needle. Officer Vanessa
Cruz, an investigative officer with the prison, conducted a “NIC” test on the suspected
narcotics confiscated from defendant. The contents of three bindles tested positive for
methamphetamine. The contents of the fourth bindle tested positive for marijuana. The
parties stipulated the Department of Justice tested the substances and they were usable
amounts of methamphetamine and marijuana. The stipulation was submitted to the jury
as exhibit 16.
DEFENSE EVIDENCE
       Inmate Eric Joy was in the same housing unit as defendant and saw defendant
being strip searched by one officer. Another officer searched a pair of shorts on the
ground. When defendant was asked if the shorts belonged to him, defendant replied they
were not his. Inmate Brian MacMillan was also in the same housing unit as defendant
and observed the officers’ search. MacMillan said the officers cleared defendant to leave
his dorm room while they conducted their search. Defendant was apprehended 15 or 20
minutes later.
       Inmate Luis Alvarez saw defendant being strip searched. Alvarez heard Officer
Huerta say he could not find anything. Moments later, Huerta told defendant to put his
clothes back on. Suddenly everything changed and defendant was arrested and placed in
handcuffs.


                                            3.
       Defendant testified that Officer Huerta entered his dormitory and told him to stay
where he was until he was strip searched and cleared to leave. Defendant was wearing
gray shorts, but not Michael Jordan basketball shorts. The Michael Jordan shorts did not
belong to defendant. After Huerta searched all of defendant’s clothing, he told defendant
to get dressed and leave the dormitory.
       While defendant was dressing, Officer Vargas arrived, picked up an article of
clothing three or four feet from defendant, searched it, and found contraband. Defendant
told the officers it did not belong to him. Defendant denied admitting the drugs and
shorts belonged to him and explained he had not used drugs since 1995.
                            APPELLATE COURT REVIEW
       Defendant’s appointed appellate counsel has filed an opening brief summarizing
the pertinent facts, raising no issues, and requesting this court to review the record
independently. (People v. Wende, supra, 25 Cal.3d 436.) The opening brief also
includes the declaration of appellate counsel indicating defendant was advised he could
file his own brief with this court. By letter on February 3, 2015, we invited defendant to
submit additional briefing. To date, he has not done so.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                      DISPOSITION
       The judgment is affirmed.




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