People v. Joseph CA5

Filed 2/2/16 P. v. Joseph CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070103 Plaintiff and Respondent, (Kern Super. Ct. No. BF153995A) v.

RENE ANDREW JOSEPH, OPINION Defendant and Appellant.

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. H. A. Staley, Judge; Colette M. Humphrey, Judge.† Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.

* Before Levy, Acting P.J., Kane, J. and Poochigian, J. † Judge Staley presided over the Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) and the motion to suppress (Pen. Code, § 1538.5); Judge Humphrey presided over the sentencing hearing.

-ooOoo- Appellant/defendant Rene Andrew Joseph pleaded no contest to transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)),1 admitted an enhancement for a prior narcotics-related conviction, and was sentenced to five years pursuant to a negotiated disposition. On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm. FACTS2 At 3:00 a.m. on March 23, 2014, Officers Gross and Burich of the Bakersfield Police Department were on patrol in a marked squad car, traveling eastbound on East 9th Street. Gross saw a man pedaling a bicycle on northbound Sansome Street, and there were no lights on the bicycle. Gross activated the spotlight on the side of his patrol vehicle, and illuminated the man and the bicycle in order to conduct a traffic stop. Gross testified he turned on the patrol car’s overhead lights within a few seconds after activating the spotlight. The bicyclist was later identified as defendant; Gross did not know defendant or have contact with him prior to this incident. Officer Gross testified that just after he turned on the spotlight, defendant used his left hand to drop two black items onto the street. After he dropped the items, defendant continued to ride the bicycle for about 20 more yards and then stopped. Officer Gross made contact with defendant and ordered him to get off the bicycle. The bicycle had a motor, but defendant had been pedaling it. Gross conducted a patdown search of defendant for weapons. Gross did not find any weapons and did not seize anything from defendant.