P. v. .Smith CA4/1 ( 2013 )

Filed 11/18/13 P. v .Smith CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063927
Plaintiff and Respondent,
v. (Super. Ct. No. SCD240768)
ANDRE DELOYNE SMITH,
Defendant and Appellant.
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.
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.
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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.
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DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
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