Filed 8/19/14 P. v. Martinez CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE


THE PEOPLE,                                                          B255305

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. LA076723)
         v.

CRISTIAN MARTINEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Leslie
A. Dunn and Susan M. Speer, Judges. Affirmed.
                                                         ______
         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
                                                         ______
       An information, filed on February 27, 2014, charged Cristian Martinez with two
counts of possession for sale of a controlled substance (Health & Saf. Code, § 11351)
(counts 1 and 3) and one count of transportation of a controlled substance (Health & Saf.
Code, § 11352, subd. (a)) (count 2).
       The charges were based on evidence presented at a preliminary hearing.
According to that evidence, on January 29, 2014, two officers noticed a green Ford being
driven back and forth in an area known as a call and deliver narcotics location and
believed that the driver was “more than likely a narcotics buyer[] waiting on a narcotics
delivery.” A white Honda approached and followed the Ford to a nearby location. The
officers thought a narcotics transaction was about to take place. As the officers exited
their vehicle to make contact with the driver of the Honda, the driver of the Ford sped
away. The driver of the Honda, identified as Martinez, did not have a driver’s license. In
response to questions from the officers, Martinez said he did not have narcotics or
weapons in the vehicle, but the officers could “‘check.’” The officers recovered “a black
tar-like substance resembling heroin and U.S. currency” “from a hidden compartment in
the center of the dash of the vehicle.” The currency totaled $3,500. The officers then
obtained written consent from Martinez to search a residence. There, they discovered
a black tar-like substance resembling heroin, as well as additional currency, pay and
owe sheets and a digital scale. Two baggies recovered from the vehicle contained
12 large bindles totaling 248.83 grams of heroin and 11 large bindles totaling
226.46 grams of heroin. A baggie recovered from the residence contained seven
plastic bindles totaling 175.70 grams of heroin.
       Martinez withdrew his initial plea of not guilty and entered a no contest plea to the
transportation charge in count 2. Pursuant to the plea agreement, the trial court imposed
the low term of three years in county jail and dismissed counts 1 and 3. Martinez filed a
notice of appeal based on the denial of his motions under Penal Code section 1538.5 to
suppress the evidence seized from his car and under Penal Code section 995 to dismiss
the charges based on an illegal search of his car.



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       We appointed counsel to represent Martinez in the matter. After examining
the record, counsel filed a Wende brief raising no issues on appeal and requesting that
we independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) On
May 19, 2014, we directed counsel to immediately send the record on this appeal and
a copy of the opening brief to Martinez and notified Martinez by letter that he had
30 days to submit by letter or brief any ground of appeal, contention or argument he
wished us to consider. We did not receive a response from him.1
       We have reviewed the entire record on appeal. Before the preliminary hearing,
Martinez made a motion pursuant to Penal Code section 1538.5 to suppress the evidence
seized from his car, contending his affirmative response that the officers could “check”
did not amount to consent to “search” the vehicle. The trial court (Judge Leslie A. Dunn)
denied the motion, stating that the word “check” did not “entail[], necessarily, just a
visual inspection and here the officer saw the dashboard to be in a modified state, so they
had a reason to go behind the dashboard. It wasn’t rummaging . . . . They, in my opinion,
they got permission from [Martinez] to inspect the car for guns or drugs, and [Martinez]
certainly didn’t say, ‘You may only look, you may not touch,’ and I’m not sure if their
use of the word check implies that it was limited to visual . . . .”
       After the filing of the information, Martinez renewed his request to suppress the
evidence through a motion under Penal Code section 995 to dismiss the charges against
him. The trial court (Judge Susan M. Speer) again rejected suppression of the evidence,
concluding that, “given the totality of the circumstances, it appears to be a freely and
voluntarily given agreement by [Martinez] to check . . . and/or to search the vehicle,
especially since [the officers] saw additional probable cause that the dashboard appeared


1
       The letter was sent to Martinez at his address of record in this Court. The letter
was not returned as undeliverable. Martinez’s counsel indicated in the declaration
attached to his Wende brief that he wrote to Martinez at his address of record “explaining
[his] evaluation of the record on appeal and [his] intention to file [the Wende brief].
Unfortunately, the mail was returned because [Martinez] was turned over to the I.N.S.
and will be, if he has not been already, deported.” Martinez has not provided this Court
with any update to his address of record.

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to have been modified in some way and then later on he gave a full consent to [search]
his residence even after they’d recovered contraband inside the vehicle, which would
further suggest to me that he gave it consensually.”
       Given the findings, no error is presented by the denial of Martinez’s motions
pursuant to Penal Code sections 1538.5 and 995. (People v. Crenshaw (1992)
9 Cal.App.4th 1403, 1408 [“Whether the search remained within the boundaries of
the consent is a question of fact to be determined from the totality of circumstances.
[Citation.] Unless clearly erroneous, we uphold the trial court’s determination”]; see
People v. Ramos (1972) 25 Cal.App.3d 529, 536 [substantial evidence supported that
consent to search bedroom in residence was freely given when officer asked “‘Is it all
right for us to look around?’” and defendant replied, “‘Sure, man. Go ahead’”].) Based
on our analysis of the record, we are satisfied that Martinez’s appointed counsel on
appeal has fully complied with his responsibilities and that no arguable appellate issue
exists. (People v. Wende, supra, 25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal.4th
106, 110.)
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.




                                                 ROTHSCHILD, P. J.
We concur:



              JOHNSON, J.                        MILLER, J.*




*
        Judge of the Los Angeles Superior Court, Assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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