P. v. Stuberg CA1/1

Filed 7/11/13 P. v. Stuberg CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, v. A136672 MARK OLIVER STUBERG, (San Mateo County Defendant and Appellant. Super. Ct. No. SC075372)

This is an appeal from a judgment of conviction in the Superior Court of San Mateo County following a jury trial. It is authorized pursuant to Penal Code section 1237. Counsel for defendant has reviewed the file in this case and has determined there are no meritorious issues to raise on appeal. She has complied with the relevant case authorities. (People v. Kelley (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) She has also notified defendant of his right to file a supplemental brief, but defendant has not done so. Upon independent review of the record, we conclude that no arguable issues are presented for review and affirm the judgment. An information was filed in the matter on March 22, 2012. Defendant was charged in count one with unlawful possession of a controlled substance (hydrocodone), a violation of Health and Safety Code section 11350, subdivision (a); in count two, a violation of Health and Safety Code section 11377, subdivision (a), possession of a controlled substance (methamphetamine); and, in count three, the unlawful possession of a device used to smoke a controlled substance, a pipe, a misdemeanor violation of Health and Safety Code section 11364. These charges arose from defendant’s arrest on

November 13, 2011. The information also alleged three prior convictions for possession of a controlled substance; an allegation precluding probation under Health and Safety Code section 11370.

Defendant pled not guilty to all charges and denied the enhancements alleged. Before the commencement of the trial, the trial court dismissed the first two prior allegations on motion by the district attorney. The jury trial began on September 17, 2012. At the close of the prosecution case, the defense asked the trial judge to strike the testimony by one of the police officers. Counsel focused on the statement by defendant to the officer regarding the presence of methamphetamine in the car registered in Stuberg’s name as being a statement obtained without Miranda.1 The district attorney maintained the remark was a spontaneous statement by defendant. The trial court denied defendant’s motion to strike. He concluded there was no Miranda violation under the totality of circumstances. On September 24, 2012, the jury found defendant guilty on all counts. The trial court found the one prior allegation true. After the verdict, counsel for defendant waived the right to a probation report and the court imposed sentence. The court granted formal probation of three years on counts one and two, and directed defendant to participate in a formal drug treatment program while on probation under Proposition 36. The sentence on count three was suspended. Fines and fees were imposed by the court. On September 24, 2012, a notice of appeal was filed. STATEMENT OF FACTS Officer Walsh of the South San Francisco Police Department was on duty on November 13, 2011. At approximately 5:50 p.m., she was patrolling the area of 451 South Airport Boulevard. She noticed a Nissan minivan illegally parked in a handicapped spot near the Bay Trail. A registration check of the van indicated it was