P. v. Contino

Filed 2/23/07 P. v. Contino CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

After the trial court denied his Penal Code section 1538.5 motion, appellant pled guilty to one count of a four count information, a count charging possession of marijuana for sale in violation of Health and Safety Code section 11359.^[1] Imposition of sentence on appellant was suspended and he was placed on probation for a period of three years. Appellant appeals and, pursuant to People v. Wende (1979) 25 Cal.3d 436, asks this court to examine the record and determine if there are any issues disclosed by it which deserve further briefing. We have done so, find none, and hence affirm. We have also reviewed a subsequent filing made by appellant personally which, although labeled as a Correction of Record, we will treat as if it were a brief. For the reasons stated below, we also find nothing in it which requires further briefing.

II. FACTUAL AND PROCEDURAL BACKGROUND

At about 10 p.m. on the evening of February 4, 2005, appellant was driving a black Chevrolet truck on a road near Calistoga, Napa County. Also on the same road was a marked patrol car containing two uniformed drug interdiction officers, Deputy Sheriffs Shultz and Hunter, who were assigned to watch for any vehicles traveling on that road which were in violation of any Vehicle Code provisions and may also be transporting narcotics. They noticed that the truck appellant was driving did not have its license plate lamp illuminated as required by Vehicle Code section 24601, and hence signaled for appellant to pull over, which he did.

Deputy Shultz approached the drivers window, which was open and spoke to appellant, the only occupant of the vehicle, through it. After Shultz had explained why he had stopped appellant, the latter replied that he had replaced the license plate lamp several times, but it kept burning out. During this conversation, the drivers side window was rolled down and Shultz smelled the odor of fresh marijuana in the cab portion of the truck. Shultz asked appellant if he had any marijuana in the vehicle, and appellant responded in the negative. Deputy Hunter, who was standing at the also-open passenger-side window, also smelled the marijuana in the vehicle and noticed a Tupperware container on the floor of the truck near appellants feet, and pointed the latter out to Shultz. Hunter asked appellant what was in the container, and appellant replied that it was his lunch. Appellant then reached down and picked up the container, which Shultz asked him to open. Inside were two large medicine bottles containing colas of marijuana as well as paraphernalia used to smoke it. Shultz testified that the marijuana in the bottles, albeit less than an ounce, had produced the odor which he had smelled while outside the drivers window.

After Shultz seized the Tupperware container and the marijuana in it, appellant stated that he used the marijuana for medical purposes, and showed the deputies a signed doctors statement (a statement which appeared genuine to Deputy Shultz) issued pursuant to Proposition 215 indicating that he had a right to possess some marijuana for medical purposes. Shultz then asked appellant if he had any more marijuana in the vehicle; appellant replied that he had more in the bed of the truck; that bed was concealed by a locked tonneau cover. Shultz requested to look inside the bed of the truck, and appellant handed him the keys thereto, stating in the process that he had about a pound of marijuana there. He explained that he had bought the marijuana from a cannabis club in Lake County but had sold it at a higher price to a similar club in Alameda County, and did so to make money as he was then lacking a job.

Deputy Shultz then unlocked the cover to the bed of the truck and searched it; he found three plastic garbage bags containing approximately 922 grams of marijuana. Appellant was arrested, handcuffed, placed in the rear seat of the deputys patrol car, and given a Miranda warning by Shultz. Shultz also searched the bags in the truck bed and, in one of them, found three grams of cocaine. Appellant explained that he was holding this as collateral for a loan of $40 he had made to another person.

On May 16, 2005, appellant was charged with four felonies, namely: transportation of cocaine ( 11352, subd. (a)); possession of cocaine ( 11350, subd. (a)); possession of marijuana for sale ( 11359); and transportation of marijuana. ( 11360, subd. (a).)

Appellant filed his Penal Code section 1538.5 motion on September 16, 2005, and a hearing on it was held on September 28, 2005. At that hearing, the court heard testimony of Deputy Shultz and then argument of counsel. After that argument, the trial court denied the motion, ruling that the evidence showed a valid traffic stop, a valid detention for the observed infraction (the marijuana in the container in the cab of the truck), and thereafter the discovery of the additional drugs via investigative questioning during detention that was not unduly delayed.

On February 22, 2006, appellant pled guilty to possession of marijuana for sale (count three in the information filed against him) in exchange for a dismissal of the remaining counts and an agreement that he would be placed on probation.

A sentencing hearing was held on April 10, 2006. Sentence was suspended, but appellant was placed on probation for three years. A 90-day jail term was stayed pending appeal, and contingent upon appellant posting bail.

The same day, appellant filed a notice of appeal, indicating that he was appealing from the denial of his Penal Code section 1538.5 motion. (See Pen. Code,  1538.5, subd. (m), and Cal. Rules of Court, rule 8.304(b).)

III. DISCUSSION

We have carefully reviewed the record and find no issues that require further briefing. As noted above, the only issues raised before the trial court were the propriety, under Penal Code section 1538.5, of the stopping of appellants car by the deputy sheriffs, their subsequent search of that car, and the consequent arrest of appellant. However, California law is clear that law enforcement officers may stop a vehicle for an apparent violation of the Vehicle Code and if, thereafter, they perceive matters which suggest violations of other laws (e.g., the Health & Safety Code), may detain the driver and conduct a reasonable search of the vehicle. Of course, if that search confirms any such violations, the arrest of the driver of the vehicle is appropriate. (See, e.g., People v. Carter (2005) 36 Cal.4th 1114, 1140-1142; People v. Russell (2000) 81 Cal.App.4th 96, 101-102; People v. Hamilton (2002) 102 Cal.App.4th 1311, 1315-1317; cf., People v. Allen (2000) 78 Cal.App.4th 445, 449-450 [bicycle being driven through a stop sign].)

As noted in our introduction, on November 30, 2006, appellant personally filed with this court a 14-page document entitled Correction of Record. Accompanying it were (1) another copy of the reporters transcript of the September 28, 2005, hearing on appellants section 1538.5 motion, (2) a copy of the district attorneys opposition to that motion in the trial court, and (3) a CD-Rom apparently containing at least a partial recording of the conversation between Deputy Shultz and appellant on the night of February 4, 2005, but which was apparently never offered into evidence at any point.

Although, as noted earlier, appellants Correction of the Record is not presented as a brief, we will treat it as such. However, no matter how labeled or treated, the filing presents nothing which requires further briefing. In it, appellant simply argues with the testimony of Deputy Shultz (the only witness at the suppression hearing) and repeatedly suggests that his testimony is inconsistent and repeatedly wrong. He also argues that the judge who heard the motion was biased towards me and that his arrest constituted a violation of our civil liberties to move about as free people.

However, it was and is the job of the trial court to assess the credibility of witnesses, not ours. And the trial court, hearing the testimony of Deputy Shultz under both direct and cross-examination, implicitly found him credible. More specifically, it said: [I]n this particular case there was a valid traffic stop, valid detention for the infraction that the officer observed, and then it became a drug investigation. And it appears to me that there was no undue delay; in fact, even considering all that transpired I believe that the officers testimony was that something like within 15 minutes from the stop this defendant was in handcuffs and under arrest. There is clearly substantial evidence in the record, which is all that is required, to support these findings of the trial court.

Nothing in the record or in appellants personal Correction of the Record suggests to us that there is any issue in this case which requires further briefing.

IV. DISPOSITION

The judgment is affirmed.

_________________________

Haerle, Acting P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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^[1]All further statutory references are to the Health and Safety Code, unless otherwise noted.