P. v. Bojo CA1/3 filed
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Filed 2/23/11 P. v. Bojo CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, A130254 v. (San Mateo County Super. Ct. No. SC071024A) RICHARD ANTHONY BOJO, Defendant and Appellant. Richard Anthony Bojo (appellant) appeals from a judgment entered after he pleaded guilty to possessing a controlled substance (methamphetamine) for sale (Health & Saf. Code, § 113781). Appellant s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND An information was filed May 28, 2010, charging appellant with possession of a controlled substance (methamphetamine) for sale (Health & Saf. Code, § 11378, count 1), possession of a firearm by a felon (§ 12021, subd. (a)(1), count 2), 1 All further statutory references are to the Health and Safety Code unless otherwise stated. 1 misdemeanor possession of a device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance (§ 11364, count 3), and misdemeanor possession of not more than 28.5 grams of marijuana (§ 11357, subd. (b), count 4). The information further alleged appellant had a prior conviction for a violation of section 11379. The information was filed after the San Mateo County Sheriff s Office searched appellant s house pursuant to a warrant that was issued on June 18, 2009. The warrant commanded the Sheriff s Office to search appellant s house, [i]ncluding all rooms, storage areas, receptacles, safes, trash containers and buildings used in connection with said premises and building for the following items or evidence: [¶] AR-15 type rifle with 16.1 barrel. . . . [¶] Soft army green case for same rifle[.] [¶] One black 10 round magazine for the same rifle. According to Deputy Sheriff Ben Hand s statement of probable cause, the items listed in the warrant had been stolen from a car and the thief had given the items to a third party to give to appellant in exchange for methamphetamine. During the search of appellant s residence, Hand looked inside a black nylon zippered case that was approximately, 10 inches long, about 5 inches wide and, approximately, 2 inches deep. Inside the black bag he found a baggie containing approximately 12.5 grams of methamphetamine, a small digital scale, six small baggies containing 0.7 grams of methamphetamine, and one small baggies containing 0.4 grams of methamphetamine. Hand also looked inside a computer bag that was 24 to 26 inches wide, . . . 8 to 10 inches deep and about 20 to 24 inches tall. The computer bag could also have been approximately 15 inches by 15 inches. Inside the computer bag he found a baggie containing approximately 1.8 grams of methamphetamine, another baggie containing suspected marijuana, and a metal tin containing several Vicodin pills. Hand testified he did not have information the rifle had been dismantled but that he opened the bags looking for the rifle or parts of the 2 rifle in case it had been dismantled. After being taken into custody and advised of his Miranda rights,2 appellant told Hand that the rifle was in the trunk of his car. The rifle was found there, inside its case and with the magazine inside the rifle. Appellant filed a motion to suppress evidence on the ground the deputies searched places where the object of the search warrant could not be found because of its size. After a hearing on the motion held October 19, 2010, the trial court denied the motion, stating the magazine could have fit in either of the two bags that were opened and that the deputy sheriffs were authorized to seize the contraband inside the bags under the plain view doctrine. On October 25, 2010, appellant pleaded guilty to one count of possession of methamphetamine for sale (count 1) and the remaining counts and allegations were dismissed. The trial court sentenced appellant to the middle term of two years, imposed various fees, and ordered him to register as a narcotics offender. The trial court awarded appellant four actual and four conduct credits. DISCUSSION We have reviewed the entire record and conclude there are no arguable issues that warrant further briefing. The trial court did not err in denying appellant s motion to suppress evidence. (See People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, 105 [ [w]hen the claim is that a search during the execution of a search warrant was beyond the scope of the warrant, the claimant bears the burden of proof ].) Appellant has not sought to withdraw his guilty plea, and in any event, there is no clear and convincing evidence of good cause to allow appellant to do so. Appellant was adequately represented by counsel at every stage of the proceedings and appeared at every hearing. There was a factual basis for the guilty plea. There was no sentencing error. There are no issues that require further briefing. 2 Miranda v. Arizona (1966) 384 U.S. 436. 3 DISPOSITION The judgment is affirmed. _________________________ McGuiness, P.J. We concur: _________________________ Siggins, J. _________________________ Jenkins, J. 4
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