Filed 7/29/16 P. v. Nolan CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GREGORY MOSES NOLAN,

Defendant and Appellant.

F070274

(Super. Ct. No. BF153422A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Michael E. 

Dellostritto, Judge.

Melissa Baloian Sahatjian, under appointment by the Court of Appeal, for

Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

-ooOooA jury convicted Gregory Moses Nolan of bringing methamphetamine into the 

county jail (Pen. Code, § 4573) and possession of methamphetamine (Health & Saf. 

 

* Before Kane, Acting P.J., Franson, J. and Peña, J.
2.

Code, § 11377, subd. (a)). Appellate counsel filed a brief asserting she could not identify 

any arguable issues in the case. After a thorough review of the record we affirm the 

judgment.

FACTUAL AND PROCEDURAL SUMMARY

The amended information charged Nolan with two counts, (1) knowingly bringing 

a controlled substance into county jail in violation of Penal Code section 4573, and (2) 

possession of methamphetamine for the purpose of sale in violation of Health and Safety 

Code section 11378. The information also alleged the following enhancements: (1) two 

prior convictions that constituted strikes within the meaning of Penal Code section 667, 

subdivisions (b)-(i) (counts one and two); (2) six prior convictions that resulted in a 

prison sentence within the meaning of Penal Code section 667.5, subdivision (b) (counts 

one and two); and (3) a prior conviction for violation of Health and Safety Code section 

11351 within the meaning of Health and Safety Code section 11370.2, subdivision (c)

(count two). 

Four witnesses testified at the trial. Kern County Probation Officer Justin 

Greemore testified that during the time period in question he was Nolan’s probation 

officer. On February 1, 2014, he conducted an unannounced probation search of Nolan’s 

residence. Nolan was not present at the time. Greemore discovered a methamphetamine 

pipe in the residence. He left a note instructing Nolan to appear at his office on February 

4. 

Nolan appeared at the probation office as directed. Greemore’s intent was to 

arrest Nolan for a probation violation because of the methamphetamine pipe. Nolan was 

arrested and transported to the county jail. During the booking process, Nolan was 

searched. During the search, Greemore discovered a plastic bag in Nolan’s sock. Inside 

the plastic bag, Greemore discovered five bindles that appeared to contain a controlled 

substance. In Nolan’s other sock, Greemore discovered more bindles which appeared to 
3.

contain a controlled substance. The booking area where these events occurred was 

subject to video recording. The recording of these events was played for the jury. 

Jeanne Spencer, a criminalist with the Kern Regional Crime Laboratory, tested the 

substance found in Nolan’s possession and determined it contained methamphetamine. 

Kern County Probation Officer David Driskill testified as an expert witness for the 

prosecution. He opined Nolan possessed the methamphetamine for the purposes of sale 

because of the quantity of methamphetamine that was recovered. 

Kern County Probation Officer Eugene Roberts testified that he was the probation 

officer for Nolan before Greemore. In response to cross-examination that suggested that 

Nolan did not live at the address searched by Greemore, Roberts testified that Nolan told 

him on several occasions he lived at the address at which Greemore found the 

methamphetamine pipe. 

The jury found Nolan guilty of bringing a controlled substance into the county jail, 

but not guilty of possession of methamphetamine for the purposes of sale. Instead, it 

found Nolan guilty of the lesser included offense of simple possession of 

methamphetamine. 

Nolan waived his right to a jury trial on the enhancement allegations. The 

prosecutor introduced into evidence certified copies of the prison packets for each of the 

priors. The trial court found the allegations true. 

Nolan filed a request with the trial court to strike his prior convictions that 

constituted strikes within the meaning of section 667, subdivisions (b)-(i). (Pen. Code, 

§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The trial court 

denied the request citing Nolan’s long and uninterrupted criminal record. The trial court 

then sentenced Nolan to the upper term of four years for count one, and doubled that term 

because of the strike prior. That term was enhanced by one year for one of the prior 

prison term allegations, for a total term of nine years. The remaining enhancements on 
4.

count one were struck. The sentenced imposed for count two was stayed pursuant to 

Penal Code section 654. 

DISCUSSION

Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 

asserting that after reviewing the record she could not identify any arguable issues in the 

case. By letter dated July 8, 2015, we invited Nolan to advise us of any issues he wished 

addressed in this appeal. Nolan did not respond to our letter.

After a thorough review of the record, we agree with appellate counsel that there 

are no arguable issues in the case. We note that defense counsel filed a motion to 

suppress asserting the search at the county jail violated his Fourth Amendment rights. 

However, the trial court correctly denied the motion as the search was incident to a lawful 

arrest. 

Nolan also filed two motions requesting different appointed counsel pursuant to 

People v. Marsden (1970) 2 Cal.3d 118, which the trial court denied. After reviewing the 

record, we agree with the trial court that neither motion had merit.

The remainder of the proceedings were straightforward. The evidence was 

presented through four witnesses. The parties agreed on the jury instructions, although 

defense counsel objected to the trial court instructing the jury on the lesser included 

offense for count two of simple possession of methamphetamine. The trial court properly 

overruled the objection. (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) Closing 

arguments were straightforward concentrating on the evidence presented and the 

inferences which could be reasonably be drawn from the evidence. Defense counsel 

effectively cross-examined the witnesses, and made reasonable arguments in an attempt 

to convince the jury it should acquit Nolan. The fact Nolan was found not guilty of the 

charge of possession of methamphetamine for sale, a favorable outcome, suggests 

defense counsel was effective in his attempts in the face of overwhelming evidence of 

Nolan’s guilt.
5.

DISPOSITION

The judgment is affirmed.