Filed 1/7/16 P. v. Cleland CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



THE PEOPLE,

         Plaintiff and Respondent,                                       E063603

v.                                                                       (Super.Ct.No. FVI1402418)

KENNETH EUGENE CLELAND,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Affirmed.

         Forest M. Wilkerson, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.

         Pursuant to a plea agreement, defendant and appellant Kenneth Eugene Cleland

pled guilty to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1),




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count 2)1 and admitted that he had one prior strike conviction (§§ 1170.12, subds. (a)-(d)

& 667, subds. (b)-(i)). In accordance with the plea agreement, a trial court sentenced him

to two years on count 2, doubled pursuant to the strike conviction, for a total term of four

years in state prison.

         Defendant filed a timely notice of appeal. We affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND2

         About 11:30 p.m. on June 28, 2014, Officer Britain Speakman was driving in his

patrol car when he observed what appeared to be a “hand-to-hand narcotic transaction.”

As he parked and exited his car, he recognized one of the individuals involved as a

person on felony probation. Speakman had several prior contacts with him in the past.

Speakman observed that individual hand something to defendant, and defendant put the

item in his front pocket. Speakman immediately approached defendant and asked him

what was in his pocket. Defendant said, “Nothing.” The officer manipulated the outside

of defendant’s pocket to see what was in there. The only object in defendant’s pocket

was a round, hard object. The officer reached in to retrieve it. It was a container which

Officer Speakman observed to contain a white crystalline substance that was consistent

with methamphetamine. He asked defendant what it was, and defendant said it was dope.

Defendant said he needed a quick fix. Officer Speakman also found approximately



         1   All further statutory references will be to the Penal Code, unless otherwise
noted.

         2   The facts are taken from the preliminary hearing transcript.


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$1,000 in small bills on defendant. The officer arrested defendant and the other

individual.

       Based on the evidence, Officer Speakman obtained a search warrant for

defendant’s residence. Upon execution, the officer entered defendant’s residence and

found hundreds of rounds of ammunition and suspected narcotics. Another officer found

a shotgun and handgun ammunition inside a recreational vehicle on defendant’s property.

       On June 30, 2014, defendant was charged by felony complaint with possession for

sale of a controlled substance (Health & Saf. Code, § 11378, count 1), being a felon in

possession of a firearm (Pen. Code, § 29800, subd. (a)(1), count 2), possession of

ammunition (Pen. Code, § 30305, subd. (a)(1), count 3), possession of a billy weapon

(Pen. Code, § 22210, count 4), and receiving stolen property (Pen. Code, § 496, subd. (a),

count 5). The complaint also alleged that defendant had one prior strike conviction (Pen.

Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and had served two prior prison

terms (Pen. Code, § 667.5, subd. (b)).

       On July 17, 2014, defendant filed a motion to suppress the evidence pursuant to

section 1538.5, subdivision (a)(1)(A)(i). The People filed an opposition to the motion.

The court held the preliminary hearing and motion to suppress hearing concurrently. The

court denied the motion and held defendant to answer to all counts and allegations.

       On August 4, 2014, the People filed an information, which included the same

counts and allegations as the felony complaint, except for count 5, which was left off.

Defendant pled not guilty and denied all allegations. He then filed a renewed motion to

suppress evidence. The court again denied the motion.


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       On May 15, 2015, defendant entered a plea agreement and pled guilty to count 2

and admitted the prior strike. In accordance with the agreement, the court sentenced him

to a total of four years in state prison and dismissed the remaining counts and allegations.

       Defendant filed an amended notice of appeal on May 27, 2015, based on the

sentence or other matters that occurred after the plea, as well as the denial of a motion to

suppress.

                                        ANALYSIS

       Defendant appealed and, upon his 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, setting forth a statement of

the case and a brief statement of the facts, and identifying two potential arguable issues:

(1) whether the police violated defendant’s Fourth Amendment right to be free from

unlawful searches and seizures when it detained him for having hand-to-hand contact

with a known probationer; and (2) whether the police violated his Fourth Amendment

rights when it conducted a warrantless seizure of a container in his pocket.

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has not done.

       Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent

review of the record and find no arguable issues.




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                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                 HOLLENHORST
                                                           Acting P. J.


We concur:


KING
                         J.


MILLER
                         J.




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