Filed 5/5/16 P. v. Harvey CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

JOEL LEVIN HARVEY,
Defendant and Appellant. D068301

(Super. Ct. No. SCD254557)

APPEAL from a judgment of the Superior Court of San Diego County, Steven

Stone and Timothy R. Walsh, Judges. Affirmed.
Appellate Defenders, Inc. and Laurel Simmons, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

Joel L. Harvey was charged with violations of Health and Safety Code 1 section
11351 (possession for sale of hydrocodone
, count 1), and section 11378 (possess ion for

1 All statutory references are to the Health and Safety Code unless otherwise specified

.2

sale of methamphetamine, count 2). After the court denied his motion to suppress
evidence of the 38.28 grams of methamphetamine and 125 tablets of hydrocodone the
police seized from his backpack, Harvey pleaded guilty to count 2 in exchang e for

dismissal of the balance and the distric t attorney ' s agreement Harvey would receive no
more than two years of local imprisonment. After Harvey pleaded guilty, t he court
granted the People ' s motion to dismiss the balance , stayed imposition of sentence, and
granted Harvey three years ' formal prob ation on conditions, including that he serve 180
days in county jail

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

436 ( Wende ) and Anders v. California (1967) 386 U.S. 738 ( Anders ) indicating she is
unable to find any arguable issues for reversal on appeal. Counsel requests this court to
review the record for error as required by Wende . We granted Harvey the opportunity to
file a supplemental brief and he has not responded. We a ffirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Search, Seizure, Arrest 2

In March 2014 San Diego police were patrolling the river bed under the trolley
bridge in the area of Friars Road in San Diego. The area is known for having narcotics
activity and assa ults. There are no legal residences in the river bed.
After hearing rustling in some bushes under the bridge, San Diego police officer
Marisela Cooper made contact with Harvey. Harvey, wearing a large backpack, told

2 This factual background is based on testimony received at the hearing on H arvey ' s motion to suppress.3

Cooper h e was living in the river bed . Harvey was nervous and fidgeting, looking in all
directions and scanning the area behind Cooper.

C onducting a pat

- down search of Harvey for weapons , Cooper found a pocket

knife in Harvey ' s pocket. Cooper asked Harvey if he had anything illegal in his
backpack. Harvey said he did not. Cooper said
, " I ' m going to check, okay? " to which
Harvey replied, " Yes, go ahead. "

When Cooper opened Harvey ' s backpack, she saw a grooming bag. Cooper
opened the grooming bag, which contained 1 24 pills later identifie d to be hydrocod one
and acetaminophen. There was a lock box under the grooming bag. The box was closed
but not locked. Cooper opened the lid, and found three baggies and a bindle containing a
crystal substance she recognized as methamphetamine. P olice arrested Harvey.

B. Motion to Suppress
Harvey brought a motion to suppress " [ a ] ll controlled substances and
paraphernalia seized " (italics omitted) in connection with his arrest. After conducting a
hearing where Cooper testified, the court denied the m otion. In denying Harvey ' s motion
to suppress, the court expressly found Cooper ' s testimony " to be credible. " The court
found the pat

- down search was lawful, stating:

" [T]he officer did articulate facts that established a reasonable or rational suspicion that the person might be armed. She, based on her own experience, was familiar with this area. She testified that it was unsafe, had been

— there had been booby traps, k nown batteries, assaults, and more importantly, she had prior contact in that specific area with others who had weapons such as knives. Based on that plus the other facts she stated were that he was fidgety

. . . looking past the officer

. . . the officer did articulate the facts establishing a4

reasonable or rational suspicion that the person might be armed, which would justify the pat down. "
The court also determined Cooper ' s search of Harvey ' s backpack was consensual,
stating:

" The court would find bas ed on the evidence presented that, in fact,

the backpack search was a consensual search in this case, so to the extent the defense says it was not a product of free will, the court disagrees with the defense on that. The court would find that it was

a con sensual search. He was asked specifically

— the issue was raised that I ' m going to search the backpack, okay, something along those lines. Yes, go ahead, and then the backpack was searched. "

DISCUSSION
As required by Anders, supra , 386 U.S. 738, counsel has set forth two possible,
but not arguable issues:

1. Did the court properly deny Harvey ' s motion to suppress evidence?
2. Did the court abuse its discretion during sentencing?
We have reviewed the entire record as mandated by Wende
, supra , 25 Cal.3d 436,

and Anders, supra , 386 U.S. 738, and have not discovered any reasonably arguable issues
for reversal on appeal.

A. Motion to Suppress
In reviewing the trial court ' s ruling on a motion to suppress evidence, " [ w ] e defer

to th e trial court ' s factual findings, express or implied, where supported by substantial

evidence. " ( People v. Weaver (2001) 26 Cal.4th 876, 924

. ) Substantively, w e review
challenges to the admissibility of evidence obtained by police searches and seizures under

federal constitutional standards. ( People v. Ayala (2000) 23 Cal.4th 225, 254

- 255

. ) " In5

determining whether , on the facts so found, the search or seizure was reasonable under
the Fourth Amendment, we exercise our independent judgment. " ( Weaver, at p. 924.)

C onsent is "' one of the specifically established exceptions '" to the Fourth

Amendment ' s warrant requirement. ( People v. Woods (1999) 21 Cal.4th 668, 674.)

" [W]hether consent was voluntary or was the product of coercion on the part of searching

officers is a question of fact to be determined from the totality of circumstances. "

( People v. Jenkins (2000) 22 Cal.4th 900, 973.)

T here is substantial evidence Harvey voluntarily consented to the search. When
Cooper asked whether it was " okay " to search the bac kpack, Harvey replied, " Yes, go

ahead. " (See People v. Chambers (1969) 276 Cal.App.2d 89, 107 [police officer
requested permission to enter an apartment, woman ' s statement, " Okay. Come on in "
constituted voluntary consent ] .)

B. Sentencing

W e review the trial court ' s sentencing decision for abuse of discretion. ( People v.

Sandoval (2007) 41 Cal.4th 825, 847.) The court did not abuse its discretion in
sentencing Harvey. The conditions of probation are consistent with the plea agreement

and 180 days local custody is substantially less than the lower term of 16 months that
could have been imposed for violating section 11378

. ( See § 11378; Pen. Code, § 1170,

subd. (h)(1).)
Competent counsel has represented Harvey on this appeal.6 DISPOSITION
The jud gment is affirmed.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.