Filed 7/11/14 P. v. Durbin CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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 THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049576

                   v.                                                  (Super. Ct. No. 11WF0387)

MICHAEL CLAIRE DURBIN,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gregg L.

Prickett, Judge. Affirmed.

                   Leslie A. Rose, under appointment by the Court of Appeal, for Defendant

and Appellant.
                                              *              *               *
              Michael Claire Durbin pleaded guilty to possessing methamphetamine for

sale (Health & Saf. Code, § 11378) and transportation of methamphetamine (Health &
Saf. Code, § 11379), and admitted suffering a prior conviction within the meaning of

Penal Code section 667.5, subdivision (b) (667.5(b)). Durbin’s appointed counsel filed a

brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende).
Counsel summarized the facts of the case, the procedural history, and possible legal

issues with citations to the record and appropriate authority, but raised no specific issues,

and asked this court to review the record to determine whether there were any arguable

issues. Counsel did not argue against her client or assert the appeal was frivolous.

              Counsel submitted a declaration stating she had reviewed the case, she

advised Durbin of the nature of the brief, she sent Durbin a copy of the brief and the

appellate record, and informed him he could file a brief on his own behalf. Counsel did

not seek to withdraw, but she advised Durbin he could move to have counsel relieved.

              Finally, counsel advised this court of possible issues, including whether
Durbin validly waived his right to appeal as part of the plea bargain, whether the court

abused its discretion in denying Durbin’s request for a certificate of probable cause,

whether his plea was constitutionally valid, whether probation conditions requiring

payment of various fees, fines and assessments were proper, and whether trial counsel

performed ineffectively. We gave Durbin 30 days to file a supplemental brief. He did

not avail himself of the opportunity.

                         FACTS AND PROCEDURAL BACKGROUND

              In March 2011, the Orange County District Attorney filed a first amended

complaint charging Durbin with felony possession for sale of methamphetamine,
misdemeanor use of methamphetamine, and misdemeanor possession of drug



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paraphernalia on January 2, 2011. The complaint also alleged Durbin suffered a prior

conviction for burglary in June 2007 and served time in prison within the meaning of
section 667.5(b).

              In May 2012, Durbin moved to suppress evidence (Pen. Code, § 1538.5)

asserting Huntington Beach police officers illegally detained him and searched his
briefcase during a traffic stop. At a combined preliminary hearing and suppression

hearing, Officer Timothy Emanuel testified that around 10:00 p.m. on January 2, 2011, he

stopped a car driven by Jill Coulon for traffic violations. Durbin, the front seat

passenger, appeared to be under the influence of a central nervous system stimulant.

Emanuel ordered Durbin out of the car. Coulon stated everything in the car was hers, and

authorized a search of the vehicle because she had “nothing to hide.” Durbin initially

denied having any personal property in the vehicle. Emanuel found a black cloth

briefcase on the rear seat behind Durbin’s seat and felt a drug pipe in a side pouch.

Durbin stated, “‘Oh, that’s my briefcase,’” and asked the officer not search it. Durbin
admitted he had used methamphetamine five or six hours earlier, and had a small amount

of the drug in the briefcase. The officer arrested Durbin and placed him in the patrol car.

The officer asked Durbin if he was willing to admit possessing drugs, why he did not

want him to search the briefcase. Durbin responded, “‘Well, I’d prefer that you didn’t

but I guess you can now.’” The officer searched the briefcase and found a black pouch

containing five individually-wrapped baggies of methamphetamine with a total weight of

4.8 grams, a digital scale, a calculator, and approximately 10 unused baggies. Emanuel

opined the drugs were possessed for sale. The court denied the suppression motion and

found probable cause to believe Durbin committed the offenses.




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              In June 2012, the prosecution filed an information charging Durbin with

possessing methamphetamine for sale and the section 667.5(b) enhancement. In
September 2012, the prosecution filed an amended information adding a count for

transportation of methamphetamine.

              In October 2012, Durbin moved for discovery of Emanuel’s personnel
records. (Pitchess v. Superior Court (1974) 11 Cal.3d 531; Evid. Code, § 1043 et seq.;

Pen. Code, §§ 832.5, 832.7, 832.8.) At a hearing on October 26, 2012, the trial court

reviewed Emanuel’s personnel file with the department’s custodian of records and

ordered the disclosure of one complainant’s identifying information.

              On October 7, 2013, Durbin executed documents waiving his rights and

pleading guilty on the understanding the court would place him on probation for three

years on various terms and conditions, including a 180-day jail term. He provided the

following factual basis for the plea: “In Orange County, California, on January 2, 2011, I

unlawfully possessed for the purposes of sale and unlawfully transported a useable
quantity of methamphetamine, a controlled substance.” Durbin expressly waived his

“right to appeal from decisions and orders of the Superior Court. I waive and give up my

right to appeal from any and all decisions and orders made in my case, including motions

to suppress evidence brought pursuant to Penal Code section 1538.5. I waive and give up

my right to appeal from my guilty plea. I waive and give up my right to appeal from any

legally authorized sentence the court imposes which is within the terms and limits of this

plea agreement.”

              At a hearing on October 7, Durbin stated he had read, signed, and initialed

the guilty plea form after discussing with his attorney the charges, facts of the case,
possible defenses, and consequences of pleading guilty. The court advised Durbin on the



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record concerning rights he was waiving, including the rights to a speedy and public jury

trial, to proof beyond a reasonable doubt, to a unanimous verdict, to confront and cross-
examine witnesses, to present evidence on his own behalf, and to testify or remain silent.

The court also advised him concerning his right to counsel and the potential immigration

consequences of his plea. Durbin waived his rights and pleaded guilty to the charges and
admitted the section 667.5(b) enhancement. Counsel joined in the waivers and plea.

              On December 19, 2013, the court imposed probation on the agreed-upon

terms and conditions, including the possibility of home confinement in lieu of jail. At the

hearing, Durbin asked the court whether he faced a jail term if he did not qualify for

home confinement, and “how long” a term he had “hanging over [his] head if” he

violated probation. The court advised him he faced a 180-day jail term, and five years if

he violated probation. Durbin stated he would “like to retract my plea.” The court

responded “Nope. No legal cause before me for you to withdraw your plea, sir.”

              Durbin filed a notice of appeal challenging the validity of the plea or
admission and sought a certificate of probable cause. He asserted counsel misled him he

would receive no jail time. The court denied the request for a certificate of probable

cause, and deemed the notice of appeal inoperative. Durbin filed a second notice of

appeal “based on the sentence or other matters occurring after the plea.”
                                       DISCUSSION

              Following the Wende guidelines, we have reviewed counsel’s brief and the

entire appellate record and discern no arguable issue. Durbin has not availed himself of

the opportunity to file a supplemental brief (People v. Kelly (2006) 40 Cal.4th 106

[appellate court must address issues raised personally by appellant in a Wende




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proceeding]), nor has he requested to have appellate counsel relieved. Consequently, we

affirm the judgment. (Wende, supra, 25 Cal.3d at p. 443.)
                                     DISPOSITION

             The judgment is affirmed.




                                               ARONSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




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