People v. Rodgers CA6 ( 2021 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047345
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 216392)
v.
LARRY LEE RODGERS,
Defendant and Appellant.
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
1
marijuana out of the center console and showed it to the officer. 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
2
(Health & Saf. Code, § 11378), 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.
2
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
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personal use or if he had his medical marijuana card that I could confirm.” 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.
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At the beginning of the sentencing hearing, defendant requested a Marsden
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
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case. 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.
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_______________________________
ELIA, ACTING P.J.
WE CONCUR:
_____________________________
BAMATTRE-MANOUKIAN, J.
_____________________________
LIE, J.
People v. Rodgers
H047345