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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

AMBER NICOLE FOWLER,

Defendant and Appellant.

F070741

(Fresno Super. Ct. No. F13902071)

OPINION

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.
2.

INTRODUCTION

Defendant/appellant Amber Nicole Fowler pled no contest to a violation of Health 

and Safety Code1section 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

 

1 All 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.
3.

Defendant was placed under arrest and transported to the Clovis Police 

Department for processing. Once there, defendant was advised of her rights and admitted 

owning all of the drugs found in her vehicle. She stated she bought the 

methamphetamine earlier that day, then went to another dealer to purchase the marijuana. 

The marijuana in the trunk came from a third dealer, and the prescription pills found were 

from a friend. Defendant indicated she had begun manufacturing concentrated cannabis 

about two or three weeks prior to the arrest. She claimed she didn’t “necessarily” sell 

drugs, but acknowledged she let friends know when she had drugs so they could buy 

from her. Defendant claimed the money, however, was not from drug sales but was an 

income tax refund.

On July 30, 2013, an information was filed charging defendant with possession of 

marijuana for the purpose of sales, a violation of section 11359; possession of 

concentrated cannabis, a violation of section 11357; and possession of methamphetamine, 

a violation of section 11377. On August 7, 2013, defendant was arraigned. A copy of 

the information was given to her and she pled not guilty to all three counts.

On May 22, 2014, defendant was in court with her defense counsel and entered a 

change of plea. She entered a plea of no contest to the count 1 offense, possession of 

marijuana for the purpose of sales. In exchange for her plea, the People agreed to dismiss 

the other two counts and to a sentence that called for 45 days on the Adult Offender 

Work Program and no state prison time.

A Felony Advisement, Waiver of Rights, and Plea Form AB109, was signed by 

defendant. Defendant initialed the boxes indicating she was pleading no contest to a 

violation of section 11359; understood and was waiving her constitutional rights; 

understood the consequences of her plea, including a maximum possible sentence of 

three years and section 11590 registration; and acknowledged a factual basis for the plea.

At the May 22 hearing, the trial court specifically inquired of defendant if she had 

gone over the change of plea form with her attorney and if she had had sufficient time to 
4.

discuss the change of plea with her attorney. Defendant responded affirmatively to both 

questions. After asking defendant if she understood her constitutional rights, was 

waiving those rights, and understood the consequences of her plea and receiving 

affirmative responses, the trial court inquired if defendant had “any questions.” 

Defendant’s only questions related to return of the property seized when she was arrested. 

Defendant’s attorney also verified that she had gone over the change of plea form with 

defendant and was satisfied that defendant understood the form.

The trial court then proceeded to accept the plea to the count 1 offense, possession 

of marijuana for the purpose of sale, and the other charges were dismissed on motion of 

the People. Defendant was ordered to report to the probation office prior to sentencing. 

Defendant failed to report to probation as ordered.

Defendant was brought before the trial court on August 4, 2014, and was ordered, 

again, to report to the probation office and to appear at the sentencing hearing on 

September 16, 2014. Defendant failed to appear for sentencing and a bench warrant was 

issued.

At the October 10, 2014, continued sentencing hearing, it was reported that 

defendant had been picked up on the bench warrant, but was released from the jail for 

overcrowding. Defendant failed to appear at the hearing and a no-bail bench warrant was 

issued.

On October 23, 2014, defendant was present with her attorney at the continued 

sentencing hearing. Defendant asked to withdraw her plea stating, “I realized that the 

felony I was pleading guilty to was for drug sales.” Defendant also stated, “I wanted 

back the supposed drug sales money, which in fact is my income tax money, so I don’t 

understand why the felony drug charge, why that would apply to me.”

The trial court reminded defendant that the court had made inquiry of her at the 

change of plea hearing, and defendant affirmed that she had sufficient time to confer with 

her counsel, understood the plea, and the consequences of the plea. Defendant agreed 
5.

that she had so stated to the trial court but stated, “I basically was given the ultimatum 

from how it was worded that if I tried to fight the case, I most likely would end up in 

prison.” The trial court denied the request to withdraw the plea, reaffirming that 

defendant had knowingly, intelligently, and voluntarily entered into the change of plea.

The trial court imposed sentence in accordance with the plea. Imposition of 

judgment was suspended for two years; defendant was placed on formal probation for 

two years, subject to 45 days in the Adult Offender Work Program, and various other 

terms and conditions were imposed.

On December 17, 2014, defendant through her attorney filed a notice of appeal, 

stating the appeal was from the sentence or other matters not affecting the plea. On 

December 23, 2014, defendant herself filed a notice of appeal. This notice of appeal also 

stated that it was from the sentence or other matters not affecting the plea, however, 

defendant also requested a certificate of probable cause. No certificate of probable cause 

was issued. 

Appellate counsel was appointed on February 29, 2015. Appellate counsel filed a 

Wende brief on April 7, 2015. This court issued its letter to defendant, informing her of 

the right to file a supplemental brief, on April 7, 2015. No supplemental brief has been 

filed.

DISCUSSION

The evidence provided a factual basis for the plea, including defendant’s own 

admissions, the quantity of marijuana recovered, and the paraphernalia used for 

manufacturing concentrated cannabis.

Withdrawal of a guilty or no contest plea is at the discretion of the trial court; a 

denial of a motion to withdraw a plea will not be disturbed on appeal absent a showing of 

abuse of discretion. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) No abuse of 

discretion appears from the record. Defendant was represented by and consulted with 
6.

counsel prior to entering her plea and affirmatively represented she understood the plea 

and the consequences of the plea.

Defendant was sentenced in accordance with the terms of the plea agreement. 

That defendant felt pressured to enter into a plea agreement, instead of face a prison term, 

does not constitute grounds to set aside a plea. Defendant was under no more, or less, 

pressure than any defendant facing felony charges and the offer of a plea bargain. 

(People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) 

After an independent review of the record, we find that no reasonably arguable 

factual or legal issues exist.

DISPOSITION

The judgment is affirmed.