Filed 10/28/21 P. v. Rodgers CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LARRY LEE RODGERS,

Defendant and Appellant.

 H047345

 (Santa Clara County

 Super. Ct. No. 216392)

Defendant Larry Lee Rodgers filed an appeal, and his appointed appellate 

counsel filed an opening brief that states the case and the facts but raises no issues. 

Defendant was notified of his right to submit written argument on his own behalf, and 

he has filed a letter. In his letter, he questions the term he received for a kidnapping in 

a separate case that was sentenced at the same time as this case. He also complains

that the police were lying about the facts of the drug cases. We have reviewed the 

record for arguable issues under People v. Wende (1979) 25 Cal.3d 436 and found 

none. We also conclude that defendant has not raised any arguable issues.

I. FACTS

On the morning of January 25, 2016, police officers responded to a report that a 

man and a woman in a car parked in a residential neighborhood were “taking their 

clothes off inside of the vehicle.” When a police officer approached the car, he saw 

that defendant was sitting in the car with a woman. Defendant rolled down the 

window, and the officer immediately smelled unburned marijuana coming from the 

car. He asked defendant about the marijuana, and defendant pulled a small baggie of 
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marijuana out of the center console and showed it to the officer.

1

 Defendant claimed 

to have a medical marijuana card, but he did not provide one. A nonconsensual search 

of the car ensued, which turned up cocaine base, methamphetamine, and more 

marijuana, along with multiple cellphones. The cocaine base was individually 

packaged in 16 baggies, each of which contained one rock. The bag of 

methamphetamine weighed 4.5 grams. No medical marijuana card was found.

On May 1, 2016, shortly before 11:00 p.m., defendant was driving a car with 

Cherie Taylor as his passenger when they were pulled over by the police after 

defendant failed to stop at a stop sign. After the police initiated the stop, but before he

pulled over, defendant took a small plastic bag out of his pocket, handed it to Taylor, 

and told her to “Stash this” because he was going to be searched. She stuck the bag 

between her breasts. Defendant consented to a search of his person, and a baggie of 

crack cocaine and a baggie of methamphetamine were found on his person along with 

$568 in cash. Taylor subsequently turned the baggie defendant had given her over to 

the police and told them that defendant had asked her to hold it for him. This baggie

contained 46 small baggies of cocaine base. Defendant called her later and was very 

angry at her for “giving up, I guess his drugs.” He told her to say the drugs were hers.

On November 1, 2016, defendant sold a rock of cocaine base to an undercover 

police officer inside a moving car.

II. PROCEDURAL BACKGROUND

Defendant was indicted on 19 counts: possession of methamphetamine for sale 

(Health & Saf. Code, § 11378),

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transportation of methamphetamine (§ 11379, 

subd. (a)), three counts of possession of cocaine base for sale (§ 11351.5), five counts 

1

This baggie of marijuana weighed 3.9 grams.

2

All further statutory references are to the Health and Safety Code unless 

otherwise indicated.
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of transportation of cocaine base (§ 11352, subd. (a)), two counts of possession of 

cocaine for sale (§ 11351), two counts of transportation of cocaine (§ 11352, 

subd. (a)), misdemeanor possession of marijuana for sale (§ 11359, subd. (b)), 

misdemeanor possession of controlled substance paraphernalia (§ 11364), 

misdemeanor resisting an officer (Pen. Code, § 148, subd. (a)(1)), misdemeanor 

driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), and misdemeanor 

possession of methamphetamine (§ 11377, subd. (a)). The indictment also alleged that 

defendant had suffered 10 prior controlled substance convictions (§§ 11370.2, 

subds. (a), (c), 11370, subds. (a), (c)), had served a prison term for a prior felony 

conviction (Pen. Code, § 667.5, subd. (b), and, at the time of the commission of 10 of 

the counts, had been out of custody on bail (Pen. Code, § 12022.1).

Defendant moved to suppress evidence seized as a result of the January 25, 

2016 search of his person and car. At the suppression hearing, Santa Clara County 

Sheriff’s Deputy Chad Brittendahl testified that he approached the passenger’s side of 

a parked car, and he saw a woman in the passenger seat and defendant in the driver’s 

seat. Another officer approached the driver’s side door. As Brittendahl approached, 

defendant rolled down the passenger’s side window, and Brittendahl could smell the 

odor of unburned marijuana. Brittendahl said “ ‘Hey, how are you today” and asked 

for a driver’s license. Defendant provided his driver’s license, and Brittendahl took it 

back to his vehicle to do a records check. When he returned to the car, he told 

defendant that he smelled marijuana and inquired whether there was marijuana in the 

car. Defendant told Brittendahl that he had an eighth of an ounce, and showed

Brittendahl a plastic baggie of marijuana. Brittendahl asked defendant to step out of 

the car, and defendant claimed that he had a medical marijuana card, though he did not 

provide one.

Brittendahl asked for consent to search, but defendant declined. Brittendahl 

searched the car anyway “[t]o determine if there was additional marijuana and if it was 
4

personal use or if he had his medical marijuana card that I could confirm.”

3

 He found 

cocaine, methamphetamine, and more marijuana along with a cellphone and a tablet in 

a backpack that was in the backseat of the car. A sweater on the backseat contained 

another cellphone and baggies with residue on them. Brittendahl found another 

cellphone in the driver’s seat. Defendant was arrested. The court denied defendant’s 

suppression motion because it found that the search was justified by Brittendahl’s 

detection of the odor of marijuana.

Defendant entered into a plea agreement to resolve this case. He pleaded no 

contest to three counts of transportation of cocaine base and one count of possession of 

methamphetamine for sale in exchange for dismissal of the remaining counts and 

allegations and a specified prison term of 4 years 8 months, which would be imposed 

consecutive to the nine-year prison term that defendant was going to receive in an 

unrelated kidnapping case. The possession for sale count (count 1) and one of the 

three transportation counts (count 4) to which he pleaded arose from the January 25, 

2016 search. The other two counts, (count 8) and (count 10), arose from the May 1, 

2016 and November 1, 2016 events.

At the beginning of the sentencing hearing, defendant requested a Marsden4

hearing. At the Marsden hearing, defendant asked to withdraw his plea. He asserted 

that he had been affected by medication when he entered his plea. Defendant 

maintained that there was evidence that should have been considered on his behalf and 

that the evidence against him should have been excluded. He also raised some 

questions about the nature of the agreed sentence. His trial counsel explained that 

defendant had been fully advised of the consequences of his plea before he entered it, 

3

This encounter occurred before non-medical marijuana possession was 

legalized in California.

4

People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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so there was no basis for her to bring a motion to withdraw the plea. The court found 

that there was no basis to withdraw the plea, and it denied defendant’s Marsden

motion.

In this case, the court imposed the specified term to which defendant had 

agreed, which was consecutive to the sentence in defendant’s unrelated kidnapping

case.

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 The court imposed consecutive one-third the midterm sentences for each of the 

four counts, for a total of 4 years 8 months. The court stayed or waived all of the fines 

and fees. Defendant timely filed a notice of appeal from the judgment. He did not 

request a certificate of probable cause.

III. DISCUSSION

Defendant’s appointed appellate counsel has raised no issues on appeal and 

asks this court to review the record under Wende to determine whether there are any 

arguable issues. We have reviewed the record, and we find no arguable issues. 

Defendant was notified of his right to submit written argument on his own behalf, and 

he has filed a letter in which he questions the term he received for the unrelated

kidnapping case, which is currently the subject of a separate appeal in this court. He 

also asserts that the police officers lied about the circumstances of the drug arrests. 

Since the unrelated kidnapping case is not before us in this appeal, we do not address 

defendant’s assertions concerning it. As he pleaded no contest to the drug counts and 

did not obtain a certificate of probable cause, he cannot challenge the factual basis for 

his pleas. (People v. Ward (1967) 66 Cal.2d 571, 573-574; Pen. Code, § 1237.5.)

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In the unrelated case, the court imposed the indicated sentence, which 

consisted of the aggravated term of eight years for the kidnapping count and a 

consecutive one-year term, which was one-third of the midterm, for a second count. 

He received concurrent terms for the other counts, and the firearm enhancements were 

stricken. The court struck the punishment for the prison prior in that case. The court 

waived all of the fines and fees, and it made a general order of restitution.
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IV. DISPOSITION

The judgment is affirmed.
_______________________________

ELIA, ACTING P.J.

WE CONCUR:

_____________________________

BAMATTRE-MANOUKIAN, J.

_____________________________

LIE, J.

People v. Rodgers

H047345