Filed 4/3/14 P. v. Alvarado CA2/8
                         NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

                                            SECOND APPELLATE DISTRICT

                                                        DIVISION EIGHT


THE PEOPLE,                                                            B249744

         Plaintiff and Respondent,                                     (Los Angeles County
                                                                       Super. Ct. No. NA092262)
         v.

JOSE LUIS ALVARADO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Meyer,
Judge. Affirmed.


         Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.


         No appearance for Plaintiffs and Respondents.
       Jose Luis Alvarado appeals from a judgment of conviction following his plea of nolo
contendere to one count of possessing ammunition and one count of possession of
methamphetamine for sale. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende),
appellant’s counsel filed an opening brief requesting that this court review the record and
determine whether any arguable issues exist on appeal. We have reviewed the entire record and
find no arguable issue. We affirm.
                                   PROCEDURAL HISTORY
       Appellant was charged with possessing methamphetamine for sale (Health & Saf. Code, §
11378) and possessing ammunition, which was unlawful because he had a prior felony conviction
(Pen. Code, § 30305, subd. (a)(1)). It was alleged appellant had a prior prison term (Pen. Code, §
667.5, subd. (b)) and prior felonies that disqualified him from probation (Pen. Code, § 1203,
subd. (e)(4)). It was further alleged he had a 1991 conviction for robbery that constituted a prior
serious or violent felony (Pen. Code, § 1170, subd. (h)(3)) and a “strike” (Pen. Code, §§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)). And it was alleged he had a 2003 narcotics conviction.
(Health & Saf. Code, § 11370.2, subd. (c).)
       Appellant filed a motion to suppress evidence seized from him pursuant to Penal Code
section 1538.5, which was submitted on the police report after appellant waived his rights to
remain silent, present evidence, and confront and cross-examine witnesses. The motion was
denied.
       Appellant waived his further trial rights and pled nolo contendere to the charges. He was
sentenced to 32 months: 16 months as the lower term for each count, doubled to 32 months
because of his strike, with the sentence on the narcotics count to run concurrent. He was assessed
mandatory restitution and other fines and fees and was awarded presentence credits.1
       Appellant filed a timely notice of appeal, but did not seek or obtain a certificate of
probable cause. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b)(1).) Instead, he checked



1      The determination of appellant’s presentence credits was incorrect, but the trial court
granted a motion correcting it and issued an amended abstract of judgment.

                                                  2
the box on the form notice that he was appealing from his “sentence or other matters occurring
after the plea,” for which no certificate is required. (See Cal. Rules of Court, rule
8.304(b)(4)(B).) Further, although he did not also check the box indicating he was appealing the
denial of the motion to suppress, we will construe his notice of appeal liberally and deem it to
include the denial of his motion to suppress, which he may challenge on appeal without obtaining
a certificate of probable cause. (Pen. Code, § 1538.5, subd. (m); Cal. Rules of Court, rule
8.304(b)(4)(A).)
                                    STATEMENT OF FACTS
       Because there was neither a preliminary hearing nor a trial in this case, we take the
following facts from the police report submitted with the motion to suppress.
       Police pulled over a car driven by appellant and conducted a traffic stop based on observed
violations of the Vehicle Code. Both appellant and a female passenger appeared “extremely
nervous”; they had shaking hands, gave rapid and short responses, and avoided eye contact with
the officers. Officers observed appellant had gang tattoos and was wearing a long white tank top
concealing his waistband area. After searching the area where the female passenger was sitting,
officers recovered identification and blank checks in someone else’s name. When questioned, the
female lied about her real name, so officers arrested her.
       Appellant signed an “Entry and Search Waiver” form (hereafter the consent to search
form), giving officers consent to search his vehicle and residence at 817 North Flint Avenue for
narcotics and illegal contraband. When a detective arrived at appellant’s house, appellant’s
mother and several other individuals confirmed appellant lived there, and appellant’s mother
identified his bedroom. A small safe was located in his bedroom, and appellant indicated the key
was on his key chain. The safe contained approximately six grams of methamphetamine (300
doses), eleven .30-caliber rounds, and five 30-06-caliber rounds. A “pay owe sheet” was also
found. Several items were found in the trunk of appellant’s car, including a fraudulent
identification card and uncommon miscellaneous items officers suspected were stolen.
                                           DISCUSSION
       We appointed counsel to represent appellant on this appeal. After review of the record,
appellant’s court-appointed counsel filed an opening brief asking this court to review the record

                                                  3
independently pursuant to Wende, supra, 25 Cal.3d at page 441. On January 17, 2014, we
advised appellant that he had 30 days within which to submit any contentions or issues he wished
us to consider. We received appellant’s supplemental brief on February 13, 2014.
       We have examined the entire record. We are satisfied no arguable issues exist and
appellant’s counsel has fully satisfied his responsibilities under Wende. (Smith v. Robbins (2000)
528 U.S. 259, 279-284; Wende, supra, 25 Cal.3d at p. 441; see also People v. Kelly (2006) 40
Cal.4th 106, 123-124.)
       Appellant contends he could not get an impartial hearing on the motion to suppress when
his lawyer had him waive his rights and submit the motion on the police report because he “had
no idea” what was going on and that he was “giving up so much,” and he only agreed to the
waiver because his attorney told him to. Penal Code section 1538.5, subdivision (c)(1) requires
the trial court to “receive evidence on any issue of fact necessary to determine the motion.”
However, the trial court advised appellant he would be waiving certain rights by submitting the
motion on the police report and appellant stated he understood the rights he was giving up. The
record demonstrates appellant’s waiver was knowing, intelligent, and voluntary. (See People v.
D’Arcy (2010) 48 Cal.4th 257, 284 [“‘Waivers of constitutional rights not only must be voluntary
but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances
and likely consequences.’ [Citations.]”]; People v. Turner (1998) 67 Cal.App.4th 1258, 1264-
1265 [voluntary waiver of statutory rights “ ‘ “ ‘requires a showing of record that the defendant or
his attorney freely acquiesced [in the waiver]. [Citations.]’ ” ’ [Citation.]”].)
       Appellant next challenges his consent to the search by arguing he did not sign the consent
to search form, it was signed long after the search of his house was conducted, and the house
searched was not his residence. However, in denying the motion to suppress, the trial court
implicitly found appellant’s consent was valid, and substantial evidence supported that
determination. (People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004, 1011
[express or implied factual findings in motion to suppress reviewed for substantial evidence].)
The police report stated officers obtained the signed waiver from appellant and his signature on
the consent to search form resembled the signature on his booking slip, which supported finding
the signature on the consent to search form was appellant’s. The police report also indicated the

                                                  4
consent to search form was executed before officers searched appellant’s house, which uncovered
the evidence leading to his arrest, and appellant’s booking slip indicated appellant was arrested
one hour after he signed the consent to search form, which supported finding the search was
conducted after appellant gave consent. And all the individuals contacted at the residence
including appellant’s mother, affirmed appellant lived there, demonstrating it was his residence.2
       Finally, appellant contends he was “backed into a wall” by his attorney and the prosecutor
to take a plea deal because he was informed he would get up to 30 years in prison if he lost at
trial, and at the plea hearing he was told he would be subject to 10 years. He also contends his
lawyer and the prosecutor told him he should take the offer of 32 months in prison and his
sentence would be reduced to 16 months under People v. Superior Court (Romero) (1996) 13
Cal.4th 497, 504, but his attorney did not show up at sentencing to request that reduction. We
may not review these contentions because they attack the validity of appellant’s plea and he failed
to obtain a certificate of probable cause. (Pen. Code, § 1237.5; Cal. Rules of Court, rule
8.304(b)(1); People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)
                                          DISPOSITION
       The judgment is affirmed.


                                                  FLIER, J.
WE CONCUR:




       BIGELOW, P. J.                             GRIMES, J.




2       Appellant contends his attorney “intentionally sabotaged” his case by failing to argue these
points in the motion to suppress. To the extent this is an ineffective assistance of counsel claim, it
fails because the lack of merit to appellant’s claims demonstrates his counsel was not deficient for
not raising them, and if he was, appellant suffered no prejudice as a result. (Strickland v.
Washington (1984) 466 U.S. 668, 687.)

                                                  5
