People v. Fowler CA5

Filed 3/3/16 P. v. Fowler 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070741 Plaintiff and Respondent, (Fresno Super. Ct. No. F13902071) v.

AMBER NICOLE FOWLER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell III, Judge. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Gomes, J. and Poochigian, J.

INTRODUCTION Defendant/appellant Amber Nicole Fowler pled no contest to a violation of Health and Safety Code1 section 11359. Defendant filed a notice of appeal, stating the appeal challenges the sentence or other matters that do not affect the validity of the plea, and no certificate of probable cause was issued. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm. FACTUAL AND PROCEDURAL SUMMARY Defendant was pulled over by police on February 20, 2013, around 10:17 p.m. for using her cell phone while operating a motor vehicle. The officer smelled a strong odor of marijuana coming from the vehicle. Defendant denied having anything illegal and consented to a search of the vehicle; an additional officer was requested to be present. The search uncovered a baggie of marijuana, a small jar of marijuana, and a small container of concentrated cannabis in defendant’s purse in the back seat. In the front seat, inside a larger purse was a green container of prescription pills, which defendant stated were Xanax and Norco. In the trunk, were several mason jars of marijuana and paraphernalia used to manufacture concentrated cannabis, along with a small purse containing a baggie of methamphetamine; the methamphetamine was 0.538 net grams. The total weight of the marijuana recovered was 186.925 net grams of marijuana in various containers, and 56.038 gross grams of concentrated marijuana. In addition, $1,257 in cash was found on defendant’s person. Several text messages on defendant’s cell phone appeared to be related to drug sales.2

1All further statutory references are to the Health and Safety Code unless otherwise specified. 2 We note that a search incident to an arrest does not constitute authorization to search digital data in an arrestee’s cell phone. (Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473, 24932494].) Defendant did not raise this issue below, and there was additional evidence, independent of the text messages, which provided a factual basis for the plea.