P. v. Diaz
Filed 5/28/08 P. v. Diaz CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, Plaintiff and Respondent, v. JOE DIAZ, Defendant and Appellant. | B202017 (Los Angeles County Super. Ct. No. BA292071) |
APPEAL from a judgment of the Los Angeles County Superior Court. Hank M. Goldberg and Steven R. Van Sicklen, Judges. Affirmed.
Roger Jon Diamond for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Joe Diaz was charged with two counts of felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1) (section 12021(a)(1)), based on two handguns that were found in the trunk of his parked car. The information also alleged two prior felony convictions for the purpose of section 12021 and one prior strike conviction pursuant to the Three Strikes law. His motion to suppress evidence pursuant to Penal Code section 1538.5 was denied. Pursuant to a negotiated plea, he pled no contest to the two prior convictions and the low term of 16 months in prison on one of the section 12021(a)(1) counts. The remaining allegations were dismissed. He was sentenced in accordance with the plea. He appealed. He has been released on bail throughout the trial and appellate proceedings.
Appellant contests both the legality of the search and the constitutionality of section 12021(a)(1). We find no error and affirm.
FACTS AT THE SUPPRESSION HEARING
On October 20, 2005, Police Officer Andrew Gonzalez spoke to a man named Kenneth Jones outside an apartment building. Jones said that, during a verbal dispute with appellant about money, appellant pulled out a small handgun and pointed it at him. Jones further stated that appellant then called the police on his cell phone, walked to his parked car in the driveway, opened the trunk, and put the handgun inside.
A neighbor told Gonzalez he saw appellant point the handgun at Jones and walk toward the car.
Appellant informed Gonzalez that he was a retired police officer, although he had no credentials with him to prove that. He said he did not live there but owned the apartments as a rental property. He admitted to another officer, Sergeant Humphries, that there were two handguns in the trunk of his car. Gonzalez believed there was probable cause to believe the trunk contained evidence of a felony, assault with a deadly weapon. He searched the trunk and found two firearms inside. Appellant was arrested.
Gonzalez testified during cross-examination that appellant was 30 feet from his car when the officer arrived.
DISCUSSION
1. The Search Issue
Appellant maintains that the warrantless search of his car violated the Fourth Amendment because the police, without benefit of a search warrant, without consent, and without exigent circumstances, search[ed] a privately owned vehicle parked on a private driveway of a private residence owned by the defendant.
A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty [or no contest]. (Pen. Code, 1538.5, subd. (m).)
The trial court denied the Penal Code section 1538.5 motion on the ground that probable cause alone was sufficient, without exigent circumstances, based on the automobile exception to the warrant requirement.
In reviewing that ruling, we utilize the appropriate standard (People v. Memro (1995) 11 Cal.4th 786, 846) and apply the federal exclusionary rules for interpreting the Fourth Amendment. (In re Lance W. (1985) 37 Cal.3d 873, 896.)
The automobile exception permits the warrantless search of a car if there is probable cause to believe the car contains evidence of a crime, even though there are no exigent circumstances that preclude obtaining a search warrant. (Maryland v. Dyson (1999) 527 U.S. 465, 466-467; see also United States v. Ross (1982) 456 U.S. 798, 825.)
Appellant argues that the exception should not apply if a car is parked in a private driveway rather than stopped by the police.
The protection of the Fourth Amendment extends to the curtilage of a private home, which is the land that surrounds and is associated with the home. (Oliver v. United States (1984) 466 U.S. 170, 180 [curtilage is the area to which extends the intimate activity associated with the sanctity of the home and the privacies of life].) We need not address the intersection of the protection afforded to a home and its curtilage, on the one hand, and the automobile exception, on the other. The structure in this case was not a private home but rather an apartment building owned by appellant and inhabited by others. We therefore need not, and do not, express a view about the relationship, if any, that there may be between the concept of the curtilage around a private home and the search of an automobile located within the curtilage.
In this case, the uncontradicted evidence is that the officers were told that appellant had pointed a gun at Jones during a dispute between the two men and that Jones saw appellant put the gun in the trunk of his car, the latter being a fact that appellants own statement confirmed. By any measure, this constituted probable cause to search the trunk of the car. This is all that was required. (California v. Acevedo (1991) 500 U.S. 565, 569.)
We therefore find no error in the denial of appellants suppression motion.
2. The Constitutionality of Section 12021(a)(1)
Defense counsel recognized below that appellants no contest plea precluded raising any issue on appeal other than the legality of the search. Even so, in an asserted attempt to preserve the issue, the briefing adds a long shot argument, which is that appellants conviction for violating section 12021(a)(1) violates his Second Amendment right to bear arms.[1] We find that the no contest plea and failure to obtain a certificate of probable cause preclude consideration of this issue. (Pen. Code, 1237.5; People v. Buttram (2003) 30 Cal.4th 773, 780.)[2]
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
FLIER, J.
We concur:
COOPER, P. J.
RUBIN, J.
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[1] Section 12021(a)(1) provides: Any person who has been convicted of a felony under the laws of the . . . State of California . . . and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.
[2] In a footnote at the end of his reply brief, appellant notes that a petition for writ of certiorari was granted on February 25, 2008, in Arizona v. Gant, No. 07-542. The Supreme Courts review will be limited to this question: Does the Fourth Amendment require law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless vehicular search incident to arrest conducted after the vehicles recent occupants have been arrested and secured? (Arizona v. Gant (2008) __ U.S. __ [128 S.Ct. 1443].) Appellant suggests that we wait to file our opinion until that case is decided. We decline to do so.
