P. v. Alvarez

Filed 5/18/06 P. v. Alvarez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Gary J. Ferrari, Judge. Affirmed.

William Flenniken, Jr., P. C., under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Lawrence M. Daniels, Supervising Deputy Attorneys General, and Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Benito Alvarez pled no contest to one count of possession for sale of a controlled substance in violation of Health and Safety Code section 11378 and admitted that he had a prior conviction within the meaning of section 11370.2, subdivision (a). Pursuant to a negotiated plea agreement, the trial court sentenced appellant to a term of five years in state prison and dismissed a count of possession of a deadly weapon in violation of Penal Code[1] section 12020, subdivision (a)(1).

Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his motion to suppress evidence and further contending that the requirement that he provide a DNA sample after conviction is unconstitutional. We affirm the judgment of conviction.

Facts

On May 21, 2005. Long Beach Police Officer David Urbina went to the 300 block of East Hewlett Street in Long Beach to investigate a call about a possible assault with a deadly weapon. At the location given in the call, Officer Urbina saw appellant, who matched the description of the suspect mentioned in the call. Appellant was sitting in his open garage, with a beer in one hand and a cellular telephone in the other.

Officer Urbina got out of his patrol car and asked appellant to come talk with him. Appellant stood up, set down his beer and cell phone, and began walking. He did not go directly toward the officer, but went around a car parked in the driveway, so that the car was between appellant and the officer. Officer Urbina saw appellant take a black baggie from his pocket and toss it onto the ground near the front wheel of the parked car.

Officer Urbina told appellant to place his hands on the hood of the patrol car. Keeping appellant in his sight, Officer Urbina retrieved the baggie and opened it. He saw a crystal-like substance which he believed was methamphetamine. The substance was later determined to be 35.16 grams of methamphetamine.

Other officers came to the scene to assist Officer Urbina. Appellant was searched incident to his arrest. Officers recovered numerous used and unused baggies, brass knuckles and $7 in United States currency. Officer Urbina saw a small silver scale in the open garage, directly in front of the location where appellant had been sitting.

Appellant signed a form consenting to a search of the premises. Inside appellant's residence, officers found $215, more baggies and 1.52 grams of methamphetamine. They did not find any drug paraphernalia.

Long Beach Police Detective Christopher Bolt testified as an expert and opined that appellant possessed the methamphetamine for sale. His opinion was based on the quantity of the methamphetamine, which he estimated could be sold for $3000, appellant's possession of a scale, packing materials and $215, and the absence of any drug paraphernalia.

Discussion

1. Motion to suppress

Appellant contends that the trial court erred in denying his motion to suppress evidence. We see no error.

In ruling on a motion to suppress, the trial court finds the historical facts, selects the applicable rule of law and applies the law to the facts to determine whether the law has been violated. (People v. Williams (1988) 45 Cal.3d 1268, 1301.) The trial court's determination of the historical facts is reviewed under a deferential substantial evidence standard, but the trial court's selection of law and application of the law to the facts are subjected to independent review. (Ibid.)

Appellant contends that he was detained by Officer Urbina, and that the police, acting on an anonymous tip, did not have probable cause for such a detention. He concludes that the drugs found after the detention were the fruit of a poisonous tree and should have been excluded. We see no detention prior to appellant's act of discarding the baggie.

As our Supreme Court has explained, the United States Supreme Court has set forth the following standard for detentions: " '[A] person has been " seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' [Citation.]" (Wilson v. Superior Court of Los Angeles County (1983) 34 Cal.3d 777, 790.)

" '[T]here is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's " castle" with the honest intent of asking questions of the occupant thereof whether the questioner be a pollster, a salesman, or an officer of the law.' [Citations.] Federal jurisprudence describes this police tactic as 'knock and talk.' [Citations.] Our own California Supreme Court has similarly said: 'It is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes. Such inquiries, although courteously made and not accompanied with any assertion of a right to enter or search or secure answers, would permit the criminal to defeat his prosecution by voluntarily revealing all of the evidence against him and then contending that he acted only in response to an implied assertion of unlawful authority.' (People v. Michael (1955) 45 Cal.2d 751, 754, 290 P.2d 852.)" (People v. Colt (2004) 118 Cal.App.4th 1404, 1410-1411.)

Here, Officer Urbina testified: " I asked [appellant] to come talk with me." There is no evidence that Officer Urbina ordered appellant to come out, or that the officer drew his weapon. (See People v. Colt, supra, 118 Cal.App.4th at p. 1411 [absent a police demand to open the door and come outside, Fourth Amendment protections are not implicated].) Officer Urbina testified that appellant " willingly" came to him. According to the officer, appellant did not come directly to him, but detoured around a car. This indicates that appellant did not feel that his movements were restricted by the officer's presence.

Appellant contends that Officer Urbina's testimony cannot be taken at face value, and that " asked" really meant " commanded" or " ordered." We do not agree. There is no evidence contrary to the officer's testimony. Although the trial court did not make a specific finding of fact on this issue, the court found Officer Urbina's account of the encounter credible. We defer to that finding and accept Officer Urbina's account of this exchange. It does not amount to a detention.

Appellant contends that even if Officer Urbina could properly ask to talk to him, he had no probable cause to open the baggie which appellant threw to the ground near the car.

The trial court found that appellant discarded the baggie and so lacked standing to move to suppress the baggie. Appellant contends that the trial court erred in making this finding because he merely transferred the baggie from one area under his dominion and control to another area under his dominion and control.

We find that appellant abandoned the baggie when he threw it to the ground. We do not agree with appellant that the United States Supreme Court's decision in Smith v. Ohio (1990) 494 U.S. 541 requires a contrary finding. In Smith, the defendant was carrying a paper bag across a parking lot when a police officer asked to speak with him. The defendant placed a paper bag on the hood of his car. The officer reached for the bag and " rebuffed [the defendant's] attempt to protect the bag, pushed petitioner's hand away and opened the bag." (Id. at p. 542.) The Court held that " a citizen who attempts to protect his private property from inspection, after throwing it on a car to respond to a police officer's inquiry, clearly has not abandoned that property." (Id. at pp. 543-544 [italics added].) We see no comparable attempt by appellant to protect his baggie.

We find this case to be more like Hester v. United States (1924) 265 U.S. 57. In that case, officers observed a visitor drive up to the defendant's house. The defendant came out and handed a quart bottle to the visitor. An alarm was raised. The visitor fled, dropping his bottle in the process. The defendant grabbed a jug from a nearby car, then also fled, and also dropped his container in the process. The officers inspected the containers and determined that they contained illegal distilled spirits. The Court found that no illegal search occurred because the defendant's own acts disclosed the containers. (Id. at pp. 58-59.)[2]

We also find that, assuming that appellant's act of throwing the baggie did not amount to an abandonment, the seizure of the baggie was proper under the plain view doctrine. " 'It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. . . .'" (Horton v. California (1990) 496 U.S. 128, 134.) " It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view; its incriminating character must also be 'immediately apparent.' . . . [Citations.] . . . Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself." (Id. at pp. 136-137, fn. omitted.)

Here, it appears that Officer Urbina was in the alley, on public property, when he saw appellant throw the baggie. Thus, his observation of appellant and the baggie did not violate the Fourth Amendment.

We find the incriminating nature of the baggie to be immediately apparent. Appellant walked around the parked car, rather then directly toward Officer Urbina, removed the baggie from his pocket and placed it near the wheel of the car. The only explanation for appellant's conduct is that the baggie contained something illegal. (See People v. Limon (1993) 17 Cal.App.4th 524, 537-538 [nature of container, officer's experience with similar containers containing contraband and behavior of suspect in handling container may all be considered in determining whether the container manifests an incriminating nature]; see also People v. Fitch (1961) 189 Cal.App.2d 398, 402 [" It is a natural impulse, on confrontation, to attempt to immediately get rid of any contraband, and one cannot be heard to complain where he or a companion has betrayed the presence of illegal goods by the alacrity with which he attempted to conceal them." ].)

We also find that Officer Urbina had a lawful right of access to the driveway where appellant threw down the baggie. There was no evidence that the public view and access to the driveway was restricted in any fashion. The driveway was apparently open to the alley. Thus, the driveway was not part of appellant's curtilage, and so was not protected by the Fourth Amendment. (See United States v. McIver (9th Cir. 1999) 186 F.3d 1119, 1123 [driveway in front of the garage of a residence is outside the home's curtilage], cited in People v. Zichwic (2001) 94 Cal.App.4th 944, 953; United States v. Dunn (1987) 480 U.S. 294, 301 [Fourth Amendment protects home and curtilage].) Moreover even when a driveway is part of a home's curtilage, " [j]ust like any other visitor to a residence, a police officer is entitled to walk onto parts of the curtilage that are not fenced off. 'Whether a driveway is protected from entry by police officers depends on the circumstances. The fact that a driveway is within the curtilage of a house is not determinative if its accessibility and visibility from a public highway rule out any reasonable expectation of privacy.'" (People v. Zichwic, supra, 94 Cal.App.4th at p. 953.)

Once appellant discarded the baggie, Officer Urbina acted reasonably for purposes of officer safety in temporarily detaining appellant by instructing appellant to place his hands on the car so that Officer Urbina could watch appellant while he retrieved the baggie. Once Officer Urbina inspected the contents of the baggie, he had probable cause to arrest appellant. After appellant was handcuffed, he signed a consent to search form for the premises.

2. DNA sample

Appellant contends that Penal Code section 269 is facially overbroad and thus unconstitutional because it applies to everyone convicted of a felony. Respondent contends that this claim is barred by appellant's no contest plea. We agree that the claim is barred.

Section 1237.5 provides in pertinent part: " No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."

Appellant did not obtain a certificate of probable cause from the trial court.

" Notwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.]" (People v. Panizzon (1996) 13 Cal.4th 68, 74-76.) However, a challenge to a negotiated sentence is properly viewed as a challenge to the validity of the plea itself. (Id. at p. 79.)

Appellant pled no contest pursuant to a negotiated agreement. DNA sampling is now a consequence of any felony conviction, and the information so advised appellant. Thus, the DNA testing is part of his agreed-upon sentence. It cannot be challenged on appeal. (See People v. Vera (2004) 122 Cal.App.4th 970, 983 [declining to review sentencing issue where defendant agreed to sentence in his plea bargain].)

Even assuming that DNA sampling was not part of appellant's negotiated plea agreement, he would not be able to challenge the DNA requirement on appeal absent a certificate of probable cause. While issues regarding proceedings held after the plea for purposes of determining " the degree of the crime and the penalty to be imposed" may be raised without a certificate of probable cause, this is not such a situation. DNA sampling is not a penalty. (See People v. McVickers (1992) 4 Cal.4th 81, 86, 89.)

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1] All further statutory references are to that code unless otherwise indicated.

[2] The court also found that even if the officers were technically trespassing on the defendant's property, the Fourth Amendment did not protect the open field next to the house. (Ibid.)