P. v. Butkovic CA6

Filed 4/2/13 P. v. Butkovic 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H038437
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SSC120026)
v.
MARIO JUAN BUTKOVIC,
Defendant and Appellant.
Defendant Mario Juan Butkovic was charged with sale of a controlled substance
while armed with a firearm (Health & Saf. Code, § 11379, subd. (a); Pen. Code, § 12022,
subd. (c) - count one), possession of a controlled substance for sale while armed with a
firearm (Health & Saf. Code, § 11378; Pen. Code, § 12022, subd. (c) - count two),
possession of a controlled substance while armed with a firearm (Health & Saf. Code,
§ 11370.1, subd. (a) - count three), possession of a firearm by a felon (Pen. Code,
§ 29800, subd. (a)(1) - count four), and possession of ammunition by a felon (Pen. Code,
§ 30305, subd. (a)(1) - count five). The trial court denied defendant’s Pitchess1 motion
and his motion to suppress evidence pursuant to Penal Code section 1538.5. Defendant
pleaded no contest to counts one, three, and five in order to receive a stipulated sentence
of three years and eight months. Counts one and four were dismissed. The trial court
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Pitchess v. Superior Court (1974) 11 Cal.3d 531.
sentenced defendant to a term of three years and eight months in state prison. Defendant
filed a timely notice of appeal.
I. Statement of Facts
At approximately 1:00 a.m. on January 22, 2012, Monterey County Sheriff Deputy
Rafael Garcia was patrolling the outskirts of Greenfield. After he observed a vehicle
make a U-turn and pull off to the side of the road, he decided to make a welfare check.
He explained that “they were on the county road, which was late at night and there’s no
street lights, like within city limits, it’s a dark area and they were off on the shoulder. I
didn’t know what was wrong with them.” Deputy Garcia had not observed a Vehicle
Code violation or anything that indicated that the vehicle was having a problem. Deputy
Garcia parked his patrol car approximately one car length behind the vehicle and
activated his spotlight.
Defendant was seated in the driver’s seat and codefendant, Kelly Hernandez, was
seated in the passenger seat. Velasco Valdez was standing outside the passenger side of
the vehicle. As Deputy Garcia was walking toward the vehicle, he saw Valdez reach into
the vehicle with cash in his hand, make eye contact with him, and lower his hand. After
Deputy Garcia spoke with Valdez for about a minute, he noticed a piece of plastic on the
ground. Based on his training and experience, he determined that the piece of plastic was
a bindle of what appeared to be methamphetamine. In his opinion, he had interrupted a
hand to hand drug transaction. Deputy Garcia then called for backup in order to conduct
further investigation.
While Deputy Garcia was waiting for backup, he noticed the odor of marijuana
coming from within the vehicle. After Deputies Maria Garcia and Nicholas Kennedy
arrived on the scene, defendant and Hernandez were ordered out of the vehicle. The
deputies then searched the vehicle. They found a gun, which defendant admitted
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belonged to him. The deputies also found a bag containing 1.5 grams of
methamphetamine and another bag containing 10 bindles of methamphetamine. There
was no marijuana in the vehicle, but Valdez had marijuana on his person.
II. Discussion
Appointed appellate counsel has filed an opening brief which states the case and
the facts but raises no issues. Defendant was notified of his right to submit written
argument on his own behalf but has failed to avail himself of the opportunity. Pursuant
to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have
concluded that there are no arguable issues on appeal.
III. Disposition
The judgment is affirmed.
_______________________________
Mihara, J.
WE CONCUR:
______________________________
Premo, Acting P. J.
______________________________
Grover, J.
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