People v. Commandor CA4/1 ( 2023 )

Filed 1/27/23 P. v. Commandor 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080232
Plaintiff and Respondent,
v. (Super. Ct. No. SCS312012)
BRIAN COMMANDOR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Enrique E. Camarena, Judge. Affirmed.
Elisabeth A. Bowman, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted Brian Commandor of importation of a controlled
substance (Health and Saf. Code, § 11379, subd. (a)) and of possession for sale
of a controlled substance (Health and Saf. Code, § 11378). Commandor
admitted a strike prior (Pen. Code, § 667, subds. (b)-(i)).
Commandor’s motion to strike the prior was denied and he was
sentenced to a determinate term of seven years in prison.
Commandor filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Commandor the
opportunity to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
Appellate counsel has set forth an accurate summary of the evidence in
the opening brief. We will adopt that statement of facts in this opinion for
convenience.
Officer Jose Guerrero has been with the U.S. Customs and Border
Protection for almost 10 years and is currently a supervisor at the K-9 unit.
Guerrero was a K-9 officer for six years. On November 27, 2019, at
approximately 8:30 p.m., Guerrero was on duty as a K-9 officer with Customs
and Border Protection at the San Ysidro Port of Entry pedestrian lane in San
Diego County. He was working with the K-9 named Maca.
While he was working, Guerrero interacted with Commandor. As
Commandor approached, Maca displayed a change in behavior; her tail
started wagging, her respiration increased, she made contact with the
wheelchair, put her nose on the pillow, and sat down. That indicated to
Guerrero that Maca was as close as possible to narcotics. Guerrero, Maca,
and Commandor went into secondary where Guerrero notified the officers
that he had an alert to the pillow in the wheelchair. Thereafter, Guerrero
had no further contact with Commandor.
Officer Christian Fernandez has been a Customs and Border Protection
officer at the San Ysidro Port of Entry since January 3, 2018. On November
27, 2019, at about 9:30 p.m., Fernandez was assigned to screen Commandor
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because Guerrero told him there was a K-9 alert on him. Fernandez took
Commandor to secondary to conduct a more thorough inspection of
Commandor and his belongings. When Fernandez inspected the pillow on
the wheelchair, it was heavier than usual and contained crunchy packages.
Fernandez knew immediately that it was methamphetamine.
Fernandez moved Commandor to the security office and took the pillow
to the seized contraband coordinator. He cut the pillow open with a pair of
scissors, removed the packages, weighed the narcotics, and placed a call to
Homeland Security Investigations. When Fernandez saw one of the packages
of narcotics, it confirmed his belief that it was methamphetamine. There was
a total of eleven packages inside the pillow. Fernandez put the packages on
the scale to determine their total weight which was 5.86 kilograms.
Fernandez arrested Commandor for transportation of narcotics, a
controlled substance, into the United States.
Officer Christopher Cabugos has been an officer with Customs and
Border Protection at the San Ysidro Port of Entry for almost eight years; he
facilitates the traffic in and out of San Ysidro. On November 27, 2019,
Cabugos was a lead for SCC (Seized Contraband Facility) where they do the
drug testing. Fernandez had a package for Cabugos to test. He was given a
random package from the inside of the pillow to test; it tested positive for
methamphetamine.
Special Agent Gary Roy has worked with Homeland Security
Investigations for about three and a half years. He is assigned to the
contraband smuggling group. Roy received a call from dispatch on November
27, 2019, regarding a drug seizure at the San Ysidro Port of Entry. Roy
responded to the call, arriving close to midnight, and contacted Commandor.
During Roy’s testimony, the prosecution asked him to opine on two
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hypotheticals which tracked the facts of this case. Roy opined that the
subject of the hypotheticals was involved in smuggling
methamphetamine/illegal narcotics into the United States for sales.
Roy has no specific knowledge as to what Commandor was paid.
No cell phone information was recovered as part of the investigation.
Stipulation of the Parties
The 11 packages seized from the defendant’s wheelchair
by Officer Fernandez were sent to the D.E.A. southwest
laboratory where they were properly tested and weighed by
a forensic chemist.
The packages were found to contain the following
controlled substances in the following quantities: A net
weight without any packaging of 4,402 grams plus or minus
1 gram of methamphetamine. It is stipulated that 4, 402
grams is equivalent to 4.402 kilograms.
So stipulated by Katherine Johnson and Dan Tandon.
Prior Offense
Officer Jason Salvador Renteria is a Customs and Border Protection
officer at the San Ysidro Point of Entry, currently assigned to the contraband
enforcement team. He has been with Customs and Border Protection for
about nine years and has been with the contraband team for the last couple
of years. On September 5, 2016, at about 6:30 p.m., Renteria screened
Commandor, who was in a wheelchair with a pillow, at secondary pedestrian
inspections because he had no driver’s license or passport—nothing to
indicate what his citizenship was. As part of the screening, Renteria
conducted a pat-down of Commandor. Renteria felt something that he
thought warranted further inspection, so he escorted Commandor to the
security office and requested a pat-down inspection, which is a further level
of inspection. Renteria cut open the stitching on the pillow and found a
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package he suspected to be methamphetamine. Renteria tested the contents
of the package and it tested positive for methamphetamine. The packaging
and its contents weighed 969.8 grams, approximately 2 pounds. Renteria
impounded the package of methamphetamine under case
No. 2016250400211501.
Defense
Prior to crossing the border into the United States, Commandor, stayed
overnight in a hotel room in Mexico. Commandor kept his wheelchair outside
his hotel room. Commandor does not have full feeling in his lower body and
buttocks, and he did not feel anything unusual when he sat back down on the
pillow in his wheelchair. Commandor was surprised when he was taken to
secondary inspection at the border; he had no knowledge whatsoever that
there were drugs in the pillow of his wheelchair, no one offered him money to
take drugs across the border, he had no cell phone to communicate with
anyone regarding the transportation of drugs across the border, and he had
no agreement to meet anyone after entering the United States.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review, and
in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has identified possible issues that were considered in evaluating the potential
merits of this appeal:
1. Whether the court abused its discretion in denying Commandor’s
motion for mistrial.
2. Whether the court abused its discretion in denying Commandor’s
motion to strike his “strike” prior.
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3. Whether the court abused its discretion in granting the
prosecution’s motion to strike Commandor’s post-Miranda statements.
We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Commandor on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
DO, J.
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