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Filed 6/3/16 P. v. Ervin CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Lassen)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCUS KHALANI ERVIN,

Defendant and Appellant.

C079634

(Super. Ct. No. CC031620)

Appointed counsel for defendant Marcus Khalani Ervin has filed an opening brief 

that sets forth the facts of the case and asks this court to review the record and determine 

whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 

436.) After reviewing the entire record, we affirm the judgment.

We provide the following brief description of the facts and procedural history of 

the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)

BACKGROUND

In December 2013, defendant was an inmate at the California Correctional Center 

(CCC) in Lassen County. Correctional Officers David Barker and Jake Wolcott were 
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conducting random searches for contraband on inmates in the visiting room to prevent 

drugs from being smuggled into the prison. The correctional officers noticed the inmates 

were not being properly searched before entering the bathrooms. The correctional 

officers went into the inmate restroom. When they entered they saw defendant sitting on 

the toilet with his pants below his buttocks and his hands between his legs. It looked 

suspicious to the officers because his pants were not where they would be if he were

actually using the toilet. The air also smelled strongly of marijuana. As the officers 

moved toward defendant, he went to flush the toilet. Despite being ordered to put his 

hands on his head and not flush, defendant started to press the toilet valve. The officers 

pulled defendant off the toilet and down to the floor. As he was being handcuffed, 

defendant said, “It’s not mine, I had nothing to do with it, it’s not mine.” 

Officer Barker looked in the toilet and saw seven blue bindles and five pieces of 

plastic floating in the water. Officer Barker took photographs of the toilet and bathroom

and collected the items in the toilet. The officers took defendant to the Investigative 

Services Unit (ISU) office, about 100 yards away. At that point, defendant claimed, “It’s 

all mine, my wife had nothing to do with it. I take full responsibility.” At the ISU office, 

Officer Wolcott noticed a small fleck of plastic or latex on defendant’s lip that was 

similar to that which had been in the toilet. Officer Wolcott asked defendant what was on 

his lip. Instead of answering, defendant licked his lip and swallowed the plastic. 

The blue bindles contained marijuana. The total net weight of the marijuana 

without the packaging was 44.1 grams. The smaller pieces of plastic did not contain 

marijuana, but Officer Barker surmised they might be used for packaging, as when 

marijuana is sold in prison, it is sold in very small quantities, approximately half a gram. 

A body search of defendant revealed he had a clear plastic latex type glove attached to his 

penis with clear lubricant material. Defendant was placed on “potty watch,” but no other 

evidence was discovered. 
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An information charged defendant with possessing marijuana while he was an 

inmate in CCC. (Pen. Code, § 4573.6.) The information further alleged defendant had a 

prior conviction for a serious or violent felony. A jury found defendant guilty as charged. 

In bifurcated proceedings, defendant admitted the prior conviction. 

The trial court sentenced defendant to the middle term of three years, doubled due 

to the prior conviction, for an aggregate term of six years, consecutive to his current term. 

The trial court imposed a $330 restitution fine (Pen. Code, § 1202.4, subd. (b)), and 

imposed and stayed an identical parole revocation fine (Pen. Code, § 1202.45). The trial 

court found defendant indigent and waived the other fines and fees. 

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening 

brief that sets forth the facts of the case and requests this court to review the record and 

determine whether there are any arguable issues on appeal. (People v. Wende, supra, 

25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental 

brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, 

and we received no communication from defendant.

Having undertaken an examination of the entire record, we find no arguable error 

that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

 NICHOLSON , Acting P. J.

We concur:

 BUTZ , J.

 DUARTE , J.