Filed 11/18/13 P. v .Smith CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDRE DELOYNE SMITH,

Defendant and Appellant.

 D063927

 (Super. Ct. No. SCD240768)

APPEAL from a judgment of the Superior Court of San Diego County, Richard S. 

Whitney, Judge. Affirmed.

Law Offices of Sarah A. Stockwell and Sarah A. Stockwell for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.

A jury convicted Andre Deloyne Smith of sale of methamphetamine (Health &

Saf. Code, § 11379, subd. (a)). The court found true three drug-related prior felony 

convictions. 
2

Smith was sentenced to six years in jail, with three years to be served in jail, 

followed by three years of mandatory supervision (Pen. Code, § 1170, subd. (h)(5)(B)). 

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) raising possible, but not 

arguable issues. We offered Smith the opportunity to file his own brief on appeal, but he 

has not responded. 

STATEMENT OF FACTS

On the evening of February 8, 2012, after several phone messages, San Diego 

Police detective Michael Day arranged to meet Smith at the McDonalds' restaurant in 

Linda Vista. During the meeting Smith gave Day a package containing .48 grams of 

methamphetamine. In return Day gave Smith $60. 

Day did not arrest Smith at that time as police hoped to be able to reach Smith's 

supplier. Police were not successful in further contacting Smith. 

Smith testified that he was not at McDonalds with Detective Day. He testified he 

was training a boxer, Delano Sanders, at a gym at the time of the offense. 

Delano Sanders testified he had been training with Smith for some time and that 

they trained from approximately 4:00 p.m. until about 7:30 or 8:00 p.m. Although 

Sanders could not remember the specific details of February 8, he was convinced that 

Smith was with him that day. 

Billy Moore, the operator of the gym, confirmed that Smith and Sanders usually 

trained at the gym beginning around 4:00 p.m. five days a week. Moore could not 

pinpoint the specific days of training. 
3

The court permitted the prosecution to reopen its case to call Detective Julie 

Epperson to testify she was present at McDonalds on February 8 and witnessed the 

transaction between Smith and Detective Day. The court also offered Smith the 

opportunity to reopen the defense case if he wished to do so.

DISCUSSION

As we have previously noted, appellate counsel has filed a brief indicating she is 

unable to identify any argument for reversal and asks this court to review the record for 

error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 

738, the brief identifies the possible, but not arguable issues:

1. Did the trial court abuse its discretion in denying Smith's three motions to 

replace counsel which were made pursuant to People v. Marsden (1970) 2 Cal.3d 118?

2. Did the trial court abuse its discretion when it allowed the prosecution to 

reopen its case?

3. Was there sufficient evidence to support the conviction?

4. Did the trial court err by failing to find Smith had the ability to pay the drug 

program fee in light of the other fines and fees he was ordered to pay?

We have reviewed the entire record in accordance with Wende, supra, 25 

Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable 

appellate issues. Competent counsel has represented Smith on this appeal.
4

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.