P. v. Fuentes

Filed 6/6/06 P. v. Fuentes CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Jose L. Fuentes appeals from a judgment imposed following revocation of his probation. He contends that the trial court abused its discretion in denying his motion to continue the revocation hearing until after the criminal proceedings on the new charges. We affirm.

I. FACTUAL BACKGROUND

On March 11, 2004, defendant pled guilty to possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The trial court suspended imposition of sentence and placed defendant on probation for a period of three years on conditions including that he was subject to warrantless searches with or without probable cause. On April 6, 2005, the district attorney moved to revoke defendant's probation based on the new charge that defendant was selling cocaine base.

Defendant thereafter moved to continue the probation revocation hearing until after the criminal proceedings on the new charge were resolved. He argued that the probation revocation proceeding should follow and not precede the criminal trial because he would be effectively required to reveal his theory of defense at the hearing. He also asserted that he had insufficient time to prepare a defense to the revocation hearing and that he intended to file a Pitchess[1] motion which could entail months of litigation and investigation. The People opposed a continuance, contending that the court had discretion to hold a probation revocation hearing prior to the trial on the related criminal charge, and that defendant failed to demonstrate a need for the continuance. The trial court denied defendant's motion for a continuance and ordered that the revocation hearing would be held concurrently with the preliminary hearing on the new criminal charge.

The concurrent hearing[2] was held on April 20, 2005. The following evidence was presented: On April 4, 2005, Officer Michael McEachern observed defendant and another man walking eastbound on the 700 block of O'Farrell Street, an area of high narcotics activity. When they looked in McEachern's direction, defendant and the other man separated. Defendant accelerated his pace and walked toward Hyde Street, while the other man walked toward Larkin Street in the opposite direction. McEachern approached defendant and asked him for identification. Defendant produced an ATM card in the name of Jose Rodriguez. McEachern also asked defendant if he had any weapons or narcotic drugs in his possession. Defendant said no, then turned around and began to put his hands up above his waist area and out to the side. McEachern assumed that defendant was giving nonverbal consent to search him.

As McEachern stepped forward to search defendant, defendant abruptly brought his right hand back to the front of his waist area. McEachern grabbed defendant's arms and brought his hands to his back. He feared defendant was reaching for a weapon. He therefore reached with his right hand to the front of defendant's waist area and began to search for the weapon. As he reached to defendant's waist, he felt a paper bag with a round object in it behind the waistband of defendant's pants. McEachern immediately knew that the object was narcotics. He seized the bag and arrested defendant. The bag contained 37 rocks of cocaine base with a total weight of 7.45 grams.

The court heard argument on defendant's motion to suppress evidence of the cocaine base. Defendant argued that McEachern lacked any articulable basis to suspect that defendant was armed, and that he failed to conduct a patsearch and simply reached into the waist area of defendant's pants. He further asserted that even if it was a patsearch, the search exceeded the protective patdown search permitted by Terry v. Ohio (1968) 392 U.S. 1, 27. The People argued the search was justified because McEachern, in conducting the patsearch for weapons, immediately knew when he touched defendant's waist area, that the object he felt was narcotics. The court also heard argument on the issue of whether to sustain defendant's hearsay objections to the evidence of narcotics testing conducted by the police department's criminalist.

On April 28, 2005, the court denied the motion to suppress. With regard to the preliminary hearing, the court found there was reasonable and probable cause to believe that defendant was guilty of possessing cocaine base for sale. Finally, the court overruled defendant's hearsay objections to the evidence of the narcotics testing, found the People had met their burden that defendant violated probation, and revoked defendant's probation.

II. DISCUSSION

It is well settled that whether a revocation hearing should be held before trial on related criminal proceedings rests within the sound discretion of the trial court. (People v. Jasper (1983) 33 Cal.3d 931, 935.) Defendant contends the court abused its discretion in denying his motion for a continuance because it was â€