1

Filed 5/30/13 P. v. Withers CA4/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 

FOURTH APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

BRADLEY JAY WITHERS, 

 Defendant and Appellant. 

 E056969 

 (Super.Ct.No. SWF1102757) 

 OPINION 

 APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. 

Affirmed. 

 Kevin Smith, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 No appearance for Plaintiff and Respondent. 

 Defendant Bradley Jay Withers is serving four years and eight months after a jury 

convicted him of possessing methamphetamine and a hypodermic needle, and the trial 

court found true he had two prior offenses, including a strike. As discussed below, we 

affirm the conviction. 
2

FACTS AND PROCEDURE 

 On November 6, 2011, sometime after 9:30 p.m., Hemet Police Officer McNish 

arrested defendant at a motel in Hemet known for drug use and prostitution. Outside on 

the ground under the open bathroom window of the motel room where defendant and 

another person were, police found plastic bags containing methamphetamine, a syringe, 

and a scale. Inside the motel room they found a tin containing another scale and another 

plastic bag containing methamphetamine. Inside defendant’s car, officers found another 

syringe and a scale similar to the one found in the motel room. 

 On November 9, 2011, the People filed a felony complaint alleging defendant 

possessed methamphetamine for sale (Health & Saf. Code, § 11378) and possessed a 

hypodermic needle (Bus. & Prof. Code, § 4140). The People also alleged defendant had 

two prison priors (Pen. Code, § 667.5, subd. (b)) and a “strike” prior (Pen. Code, §§ 667, 

subds. (c) &(e)(1), and 1170.12, subd. (c)(1).1

 After the preliminary hearing held on January 19, 2012, the trial court held 

defendant to answer. 

 On January 31, 2012, the People filed an information charging defendant, as in the 

complaint, with possessing methamphetamine for sale, possessing a hypodermic needle, 

and with the two prison priors and the strike prior. 

 1 The prior convictions were for robbery (Pen. Code, § 211) in 2003, for which he 

was sentenced to two years, and twice violated parole, and felony drug possession in 

2007, for which he was sentenced to 32 months and violated parole once. Defendant 

suffered a number of other convictions between 1998 and 2011. 
3

 At trial, Officer McNish testified as follows. McNish pulled into the motel 

parking lot and saw defendant standing in front of one of the rooms. McNish saw 

defendant make eye contact with him, defendant’s “eyes began to widen,” defendant 

“reached into the pockets of his pants and ran into” the motel room. McNish testified 

that, “Based on . . . his movements, he appeared to be nervous and wanting to quickly get 

away from my location.” McNish parked the car and called for backup. 

 McNish went to the motel room, knocked loudly on the door, stated he was a 

police officer and told the occupants to open the door. He could hear voices of a man and 

a woman. A woman answered the door. The officer knew the woman from previous 

contacts and he believed she was on probation or parole. McNish asked to enter the room 

and the woman gave permission. He saw defendant coming from the back of the room, 

but did not see him exit the bathroom, although he suspected defendant had come from 

the bathroom. McNish handcuffed defendant, but told him he was not under arrest and 

would be released from the handcuffs once police backup arrived. McNish did so when 

backup arrived. 

 McNish went into the bathroom and saw that the window to the outside was open. 

He looked outside and saw on the ground some plastic bags, a syringe and a scale. 

McNish went outside and recovered the items, then came back inside and found another 

scale and plastic bag inside the nightstand. 
4

 McNish placed defendant under arrest and gave him the Miranda2 warnings. 

Upon questioning, defendant told McNish that the items found outside the bathroom 

window belonged to him, that he had thrown them out because he “got nervous” and 

accurately described the items. Defendant stated he had been selling methamphetamine 

for not very long, and only to provide for his family. 

 A police criminologist testified that she tested three of the five plastic bags that 

had been retrieved, and found that they contained methamphetamine. 

 Defendant testified on his own behalf and told a different version of events than 

did Officer McNish. He stated he had just arrived at the motel at the same time as 

Officer McNish, and was meeting his girlfriend there. He had just walked to the back of 

the room when McNish knocked, and had not been in the bathroom at all. Defendant 

testified that the officer handcuffed him and put him into the squad car, but not under 

arrest, for 30 minutes while he searched the motel room. Defendant testified that he 

never admitted the items found on the ground were his and never admitted that he was 

selling methamphetamine, and in fact he was not selling methamphetamine. After 

McNish arrested defendant, he searched defendant’s car and found the scale and 

hypodermic needle. Defendant testified that he stated the items were his only after the 

officer told defendant that his wife would be arrested. 

 Defendant testified that he did not receive the Miranda warnings until after he was 

taken to the police station. After receiving the warnings, defendant said that the scale and 

 2 Miranda v. Arizona (1966) 384 U.S. 436. 
5

hypodermic needle in the vehicle belonged to him. Defendant testified that he was a drug 

user and kept the items in the vehicle for his personal use. 

 The jury acquitted defendant of possessing methamphetamine for sale, but 

convicted him of the lesser included offense of simple possession (Health & Saf. Code, § 

11377, subd. (a)) and misdemeanor possession of a hypodermic needle. Defendant 

admitted the prior convictions. The trial court denied defendant’s Romero3 motion and 

sentenced him to four years and eight months as follows: the low term of 16 months for 

possession, doubled to 32 months for the strike, plus two years for the prison priors. The 

six-month misdemeanor sentence was to be served concurrently. This appeal followed. 

DISCUSSION

 Upon defendant’s request, this court appointed counsel to represent him. Counsel 

has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders 

v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a 

statement of the case, a summary of the facts, and potential arguable issues and 

requesting this court to conduct an independent review of the record. 

One of the potential arguable issues that counsel suggests is whether Officer 

McNish’s entry into the motel room was unlawful under the Fourth Amendment to the 

United States Constitution. Specifically, before he knocked on the door and demanded 

entry, the officer was not aware of any crime taking place in the room and did not know 

the identity of either of the occupants, and so did not know that the female occupant was 

 3 People v. Romero (1996) 13 Cal.4th 497. 
6

on parole or probation and thus required to consent to entry and search. However, as 

appellate counsel points out, trial counsel did not raise this issue in the trial court and so 

has waived it on behalf of defendant. (Evid. Code, § 353.) 

We offered defendant an opportunity to file a personal supplemental brief, but he 

has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we 

have independently reviewed the record for potential error and find no arguable issues. 

DISPOSITION 

The judgment of conviction is affirmed. 

NOT TO BE PULBISHED IN OFFICIAL REPORTS 

RAMIREZ 

 P. J. 

We concur: 

McKINSTER 

 J. 

CODRINGTON 

 J.