Filed 8/26/14 P. v. McDonald CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Sutter)
                                                            ----




THE PEOPLE,                                                                                  C075251

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF121658)

          v.

STEVEN KELLY McDONALD,

                   Defendant and Appellant.




          Counsel for defendant Steven Kelly McDonald has filed an opening brief that sets
forth the facts of the case and asks this court to review the record and determine whether
there are any arguable issues on appeal.1 (People v. Wende (1979) 25 Cal.3d 436.) We
affirm.



1      Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief. More than 30 days elapsed, and we
received no communication from defendant.

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                  FACTUAL AND PROCEDURAL BACKGROUND
       At around 11:00 p.m. on August 3, 2013, two Yuba City police officers saw
defendant speeding in a 25-miles-per-hour zone. They could also hear music coming
from his sport utility vehicle (SUV) from 200 feet away. After initiating a traffic stop
and identifying defendant (the sole occupant and driver), one of the officers asked if he
had anything illegal in his SUV. Defendant said “no” but looked quickly to the side of
his seat. Defendant was instructed to get out of the SUV. The officer then searched the
SUV, locating a methamphetamine pipe between the driver’s seat and center console.
Another officer then told defendant he was going to be personally searched and defendant
admitted he had some “dope” in his possession. The officer found a plastic bag
containing 2.7 grams of methamphetamine in defendant’s pocket. Defendant did not
offer an explanation for his possession of the pipe or methamphetamine. He did,
however, say he had a problem with drugs.
       Defendant testified that he had been convicted of assault in 2011 and was on
probation when the officers stopped him on the night of his arrest. About an hour or two
earlier, he had gone to the residence of Seemab Kahn to discuss the possibility of buying
her husband’s truck, since defendant was in the business of buying and selling vehicles.
On his way to Kahn’s house, he came across an acquaintance, Samantha Jiminez. He
asked Jiminez to accompany him to Kahn’s house so he would have someone to drive his
SUV back if he decided to buy Kahn’s husband’s vehicle. While defendant was speaking
with Kahn, he saw a lighter flickering in his SUV. He went over to his SUV and, when
he saw Jiminez was trying to light the pipe to smoke drugs, he yelled at her and snatched
both the pipe and the baggie of drugs he saw on her lap. Defendant and Jiminez argued
for a few moments. Defendant told her to go home and get cleaned up and refused to




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give her the items back. Jiminez was agitated and eventually left on foot. Defendant
went back to Kahn and continued the negotiations, although they did not reach a mutually
agreeable price.
       Kahn also testified that when defendant arrived at her house, he had a female
passenger in his SUV. Kahn saw the lighter flickering and defendant went over to his
SUV immediately upon seeing it. Defendant and the female argued and eventually, the
female left on foot. When defendant returned, Kahn saw him holding a glass pipe in one
hand and a baggie with a clear substance in the other hand.
       Defendant testified that he intended to dispose of the pipe and drugs but did not
know how he planned to do that. He considered bringing it to the police but had not
decided if that was a good plan. He did not throw the items out the window because he
did not want a child to find them. After he left Kahn’s house, he stopped for gasoline at
Circle K and bought a lighter and cigarettes. He did not throw the items in the trash
because he had seen people rummage through it. He also did not want to bring the items
home. He had already driven past his house when he was pulled over. He did not tell the
officers he had the pipe and drugs when he was stopped; and when asked, stated that he
did not know if he would get into trouble.
       The jury trial took place on August 20 and 21, 2013. The trial court denied
defendant’s request to instruct the jury with CALCRIM No. 2305 on momentary
possession as a defense. A jury found defendant guilty of possession of
methamphetamine and possession of drug paraphernalia.
       Sentencing took place on October 15, 2013. The trial court placed defendant on
probation on the condition he serve nine days in county jail, with time served, and
imposed various fines and fees.
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.



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                                 DISPOSITION
     The judgment is affirmed.



                                               ROBIE   , Acting P. J.



We concur:



     BUTZ               , J.



     MURRAY             , J.




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