People v. Henson CA3

Filed 10/23/15 P. v. Henson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, C076361

Plaintiff and Respondent, (Super. Ct. No. CRF12253)

v.

JOSEPH RICHARD HENSON,

Defendant and Appellant.

A jury convicted defendant Joseph Richard Henson of transporting or giving away more than 28.5 grams of marijuana. (Health & Saf. Code, § 11360, subd. (a).)1 The trial court placed defendant on three years’ formal probation.

1 Defendant initially pleaded no contest to the charge, but the trial court rejected the plea at sentencing.

1

On appeal, defendant contends trial counsel was ineffective for failing to file a motion to suppress the marijuana. We affirm. BACKGROUND On December 8, 2010, California Highway Patrol Officer Leo Smith completed a declaration of probable cause in support of a warrant to arrest defendant. According to the declaration, on December 1, 2010, Officer Smith was contacted by a United Parcel Service (UPS) employee regarding a box containing suspected marijuana left by a customer going by the name of John Smith. The UPS employee heard noise from the box, so he opened it to check for damage. The box contained a package, which he also opened. The package was wrapped in Christmas present paper and double-wrapped in yellow envelopes. The employee opened this package and found “in plain view loose chips, red pieces, and something wrapped in aluminum foil packaged in a clear container.” As he opened the container, the UPS employee detected a strong odor of marijuana. Upon smelling the marijuana, he telephoned Officer Smith at about 2:45 p.m. Officer Smith arrived at the UPS facility at around 4:20 p.m. He could smell the strong odor of marijuana from the opened box. Officer Smith “looked into the box and located a clear plastic container that contained several loose corn chips, red ‘Hot Tamale’ type candies, and an item wrapped in aluminum foil.” He “opened the aluminum foil and noticed three bundles of a green leafy substance, suspected marijuana wrapped in red see through wrapping.” The substance later tested positive for marijuana. The package contained 377.97 grams of marijuana. Information on the shipping label was used to trace the package to defendant, whom the UPS employee identified in a photographic lineup as the customer who mailed the package. The following testimony was presented at defendant’s trial. Kevin Christensen worked at the UPS center in Olivehurst. On December 1, 2010, a man identifying himself as John Smith dropped off a package. While processing the