Filed 1/22/15 P. v. Jenkins CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,                                                          B255313

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                     Nos. TA130942, YA079877
         v.                                                          & YA088291)

MARVIN LENELL JENKINS,

         Defendant and Appellant.




         APPEAL from judgments of the Superior Court of Los Angeles County, Pat
Connolly, Judge. Affirmed.


         Janet Gusdorff, under appointment by the Court of Appeal, for Defendant and
Appellant.


         No appearance for Plaintiff and Respondent.
       Defendant and appellant, Marvin Lenell Jenkins, appeals from the judgments
entered following revocation of probation previously granted in People v. Jenkins,
Los Angeles County Superior Court case Nos. YA079877 and YA088291, and his
conviction for the sale, transportation or offer to sell a controlled substance, cocaine base
(Health & Saf. Code, § 11352, subd. (a)) in Los Angeles County Superior Court case
No. TA130942. The trial court sentenced Jenkins to nine years four months in prison.
We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. Case No. YA079877.
       At the preliminary hearing held on January 26, 2011, Gardena Police Officer Jesus
Ugalde, “an expert on the subject of possession for sale of cocaine base and
methamphetamine,” testified that on December 22, 2010 he interviewed Jenkins at the
police station. Jenkins had been taken into custody by a number of Gardena police
officers after he had been found standing in the hallway of the Moonlight Inn, a hotel on
Western Avenue in Gardena.
       After waiving his rights pursuant to Miranda,1 Jenkins told Ugalde he had been in
one of the rooms at the hotel where he had taken three Vicodin pills. Later, when he left
the room and went out into the hallway, he was “kind of high” and could not remember
how he was initially contacted by law enforcement officers. “[H]is next recollection was
[that] . . . officers [were] attempting to search him.” Jenkins denied having been under
the influence of either cocaine base or methamphetamine.
       Two of the police officers who had assisted in taking Jenkins into custody told
Ugalde that, at approximately 2:00 a.m. on December 22, 2010, they had gone to the
Moonlight Inn and spoken with the manager, who indicated he had been having problems
with individuals coming into the hotel to sell drugs. When the officers then walked down
the hall, they saw Jenkins. Although he did not appear to be under the influence of
methamphetamine, cocaine or cocaine base and did not exhibit the symptoms of one who

1
       Miranda v. Arizona (1966) 384 U.S. 436.

                                              2
uses those substances, one of the officers asked Jenkins what he was doing at the hotel.
Jenkins did not answer and the officer attempted to conduct a cursory pat-down search of
Jenkins for weapons. When the officer then attempted to place Jenkins’s hands behind
his back, he noticed Jenkins was holding in the palm of his hand “a baggie containing a
white rock-like substance resembling cocaine.”
       Jenkins began to physically resist the officer. He began to kick and hit one of the
officers and the two officers together were unable to subdue him. Accordingly, one of
the officers called for back-up officers. Additional officers came to the hotel and, at one
point during the confrontation, Jenkins dropped two baggies to the floor. The baggies
were “different sizes. One was square and one was more like a sandwich baggie, tied . . .
with a knot.” One of the officers recovered the baggies and, once Jenkins had been
finally restrained and transported to the station, the officer took the baggies and booked
them into evidence.
       When they were analyzed at the police station, it was found the baggies contained
eight rocks, some of which consisted of methamphetamine and some of which contained
a net weight of approximately 1.80 grams of cocaine base.
       After speaking with Jenkins, Ugalde formed the opinion he possessed the narcotics
for the purpose of sale. Jenkins never stated he was a chronic user of either
methamphetamine or cocaine and the officer did not notice Jenkins had any “chronic user
cues” such as “signs of weight loss [or] burned fingertips normally caused by a hot
object, like a pipe.” In addition, the way the rocks had been individually cut and their
relative size indicated Jenkins intended to sell them.
       As a result of the evidence presented at the preliminary hearing (see Cooley v.
Superior Court (2002) 29 Cal.4th 228, 250), on February 9, 2011, Jenkins was charged
by information with possession for sale of cocaine base, a felony (Health & Saf. Code,
§ 11351.5) (count 1); possession of methamphetamine, a felony (Health & Saf. Code,
§ 11377, subd. (a)) (count 2); resistance, obstruction and delay of a peace officer during
the discharge of his or her duties, a misdemeanor (Pen. Code, § 148, subd. (a)(1))
(count 3); the assault of a special victim, a peace officer, a misdemeanor (Pen. Code,

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§ 240) (count 4); and battery of a peace officer while the officer was engaged in the
performance of his or her duties, a misdemeanor (Pen. Code, § 243, subd. (b)) (count 5).
It was further alleged with regard to counts 1 and 2 that Jenkins previously had suffered
six prior convictions for which he served prison terms within the meaning of Penal Code
section 667.5 and had suffered a prior conviction within the meaning of the Three Strikes
law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
       After the trial court denied Jenkins’s motion to suppress evidence (Pen. Code,
§ 1538.5), then determined the evidence presented at the hearing held on his Pitchess2
motion revealed nothing discoverable with regard to alleged “prior complaints of lying or
fabrication” on the part of two of the arresting officers, Jenkins decided to enter pleas.
The trial court indicated, if Jenkins pled guilty or no contest to each of the five counts and
admitted two of the prior prison terms, the court would strike the alleged Three Strikes
prior, impose a five-year sentence, suspend the sentence and grant Jenkins three years
probation.
       After being advised of his constitutional and other rights, Jenkins pled guilty to
each of the five charges and admitted suffering two of the prior convictions for which he
had served prison terms. The trial court imposed a sentence of three years in state prison
for Jenkins’s conviction of count 1 and two consecutive years for the prior convictions he
admitted pursuant to Penal Code section 667.5. The trial court then suspended the
sentence and granted Jenkins three years formal probation on the condition, among
others, that he spend one year in a live-in drug treatment program. Finally, the trial court
dismissed Jenkins’s “strike prior.”
              2. Case No. YA088291.
       In a felony complaint filed on September 3, 2013 in case No. YA088291, Jenkins
was charged with possession of cocaine (Health & Saf. Code, § 11350, subd. (a))
(count 1), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a))
(count 2) and bringing contraband into a jail (Pen. Code, § 4573, subd. (a)) (count 3). It

2
       Pitchess v. Superior Court (1974) 11 Cal.3d 531.

                                              4
was further alleged as to all three counts Jenkins had suffered three prior convictions for
which he served prison terms pursuant to Penal Code section 667.5, subdivision (b).
Finally, it was alleged Jenkins had suffered two prior convictions within the meaning of
the Three Strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
       At proceedings held that same day, the trial court appointed a public defender to
represent Jenkins. When Jenkins’s newly appointed counsel indicated they were ready to
proceed, the trial court asked Jenkins if he wished to waive his rights to a preliminary
hearing and a jury trial. After Jenkins indicated he was willing to give up those rights
and enter a plea, the prosecutor stated she was willing to strike one of Jenkins’s
“strike[s].” The trial court then addressed Jenkins and stated: “You understand the
possible sentence in this case [is] . . . six years . . . which would be served in state prison
because of your prior [remaining] strike.” When Jenkins indicated he understood and the
trial court indicated it was going to sentence him pursuant to “Prop 36,” Jenkins pled
“[n]o contest” to possession of cocaine as alleged in count 1 of the complaint.
       After Jenkins entered his plea, the People stated they wished “to amend the
complaint to allege Penal Code section 1170[, subdivision] (h)(3)[,] which . . .
indicate[d] that any state prison sentence . . . [Jenkins] would have to serve would
[actually] be served in . . . state prison. And that [was] because he [had] . . . [an April 15,
1997] conviction [for robbery in violation of Penal Code section 211] in case
BA148743.” Jenkins indicated he was willing to waive arraignment with regard to the
allegation and the trial court explained to him that if he admitted having committed the
crime, then violated the terms of his probation, he would be sentenced to state prison
instead of county jail. Jenkins then admitted having suffered the prior conviction.
       The trial court concluded Jenkins had knowingly, intelligently, freely and
voluntarily entered the plea and made the admissions. Jenkins waived arraignment for
judgment and the trial court suspended imposition of sentence and granted Jenkins one
year of formal, unsupervised probation. Jenkins was, however, ordered to attend a six-
month drug treatment program in which he was to enroll the following day. The trial
court then dismissed all the remaining counts and allegations.

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       3. Case No. TA130942.
       At approximately 8:00 p.m. on November 19, 2013, Los Angeles Police
Department Narcotics Detective John Armando was “following up on a narcotics
complaint” at the Economy Hotel on South Broadway. The complaint had indicated “a
man by the name of Marvin . . . was selling rock [cocaine] and crystal meth out of a
motel room there.” The detective had followed a man up to the second floor of the hotel,
where the man knocked on the door of room 210. Jenkins answered the door and the two
men “engaged in a brief conversation.” The visitor, a Mr. Allen, then walked back down
the stairs to his car and a female passenger, Jacqueline Brown, got out of the car and
walked up to room 210. There, Brown and Jenkins had a short conversation, at the
conclusion of which Brown handed to Jenkins some money and Jenkins handed to Brown
“a clear plastic bindle containing . . . cocaine base.” Armando and his partner then
approached Brown, who dropped the bindle and stepped on it. The detective was able to
“move[] Brown off the bindle” and recover it.
       Detective Armando and his partner placed Brown and Allen under arrest and
transported them to the station. As the officers were arresting Brown, she spontaneously
said, “ ‘We’re just going home to get high.’ ”
       The bindle recovered by Armando was analyzed and it was stipulated it contained
.31 grams of cocaine base.
       Armando and his partner returned to the hotel where they saw Jenkins speaking to
another woman outside his hotel room. The officers arrested Jenkins and transported him
to the jail. There, Jenkins took from his rear waistband and gave to Armando “two
individually wrapped crystals” later determined to contain 2.31 grams of
methamphetamine.
       In an information filed December 23, 2013, Jenkins and a codefendant were
charged with the sale, transportation or offer to sell cocaine base (Health & Saf. Code,
§ 11352, subd. (a)) (count 1) and possession for sale of methamphetamine (Health & Saf.
Code, § 11378) (count 3). It was further alleged Jenkins previously had suffered a
conviction for a serious or violent felony, robbery, within the meaning of Penal Code

                                             6
section 1170, subdivision (h)(3) and Penal Code sections 667, subdivisions (b) to (i) and
1170.12, subdivisions (a) to (d), the Three Strikes law; had suffered two prior
convictions pursuant to Health and Safety Code section 11370.2, subdivisions (a) and (c);
and had suffered six prior convictions for which he served prison terms within the
meaning of Penal Code section 667.5, subdivision (b).
       4. Probation violation proceedings.
       After hearing argument from Jenkins’s counsel, the trial court indicated that in
case No. TA130942, there was “absolutely no doubt, whatsoever” Jenkins possessed the
methamphetamine “for sale[].” Under the circumstances, Jenkins had violated the terms
of his probation in both case No. YA079877 and No. YA088291.
       With regard to his probation violation in case No. YA079877, the trial court
imposed the previously suspended term of three years in prison for his conviction of
possession for sale of cocaine base and the two 1-year terms for his prior convictions for
which he served prison terms, for a total sentence of five years. For his violation of
probation in case No. YA088291, the trial court imposed the upper term of three years for
his conviction of possession of cocaine, then doubled the term to six years as Jenkins had
suffered a prior “strike.” For his conviction of possession of methamphetamine, the trial
court imposed one-third the midterm, or one year four months, the term to run
consecutively to the term imposed for possession of cocaine. Finally, the trial court
imposed an additional two years in prison based on Jenkins’s admissions he had suffered
two convictions for which he served prison terms within the meaning of Penal Code
section 667.5, subdivision (b). As the term imposed for Jenkins’s probation violation in
case No. YA079877 was to run concurrently to that imposed for case No. YA088291,
Jenkins was to serve a total of nine years four months in state prison.
       With regard to both cases, the trial court awarded Jenkins a total of 402 days of
presentence custody credit. The trial court then ordered Jenkins to pay a restitution fine
of $300 as to each matter, for a total fine of $600 (Pen. Code, § 1202.4, subd. (b)), a
stayed $300 parole revocation restitution fine for each case, or a total stayed fine of $600
(Pen. Code, § 1202.45), a $40 court operations assessment as to each case, or a total

                                             7
assessment of $80 (Pen. Code, § 1465.8) and a $30 court construction fee as to each
matter, for a total fee of $60 (Gov. Code, § 70373).
       5. Sentencing in Case No. TA130942.
       At proceedings held on February 19, 2014, Jenkins decided to accept the People’s
offer with regard to a sentence in case No. TA130942. In exchange for a plea of guilty or
no contest to the allegation in count 1, the sale, transportation or offer to sell cocaine
base, the trial court would impose the low term of three years in prison, the term to run
concurrently with the sentences imposed in case Nos. YA079877 and YA088291. All
remaining counts in case No. TA130942, including the “strike,” would be dismissed.
Jenkins then pled no contest to the sale, transportation or offer to sell cocaine base. The
trial court denied probation and sentenced Jenkins to three years in state prison, the term
to run concurrently with those imposed in case Nos. YA079877 and YA088291.
       As to fines and fees, the trial court imposed a $300 restitution fine, a stayed $300
parole revocation restitution fine, a $50 laboratory analysis fee (Health & Saf. Code,
§ 11372.5, subd. (a)), a $40 court security fee and a $30 court construction fee. After the
trial court indicated the fines would be deducted from Jenkins’s prison earnings, the court
awarded Jenkins a total of 188 days of presentence custody credit and dismissed the
remaining counts.
       Jenkins’s notice of appeal, filed in this court on March 25, 2014, was accepted on
May 27, 2014, pursuant to an order issued by the Administrative Presiding Justice.
                                         CONTENTIONS
       After examination of the record, counsel filed an opening brief which raised no
issues and requested this court to conduct an independent review of the record.
       On October 8, 2014, counsel for Jenkins advised him that he had the right to
personally submit within 30 days any contentions, grounds of appeal or arguments he
wished this court to consider. No response has been received to date.




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                                    REVIEW ON APPEAL
      We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)
                                       DISPOSITION
      The judgments are affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                      KITCHING, J.


      We concur:


                    EDMON, P. J.




                    ALDRICH, J.




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