P. v. Fuentes

Filed 3/2/07 P. v. Fuentes CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice,

Judge.

Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

On March 9, 2006, the trial court denied motions by appellant, Ana Alexandra Fuentes, to suppress, quash and traverse a search warrant. On March 21, 2006, Fuentes entered into a plea agreement in which she pled no contest to being under the influence of methamphetamine (Health & Saf. Code,  11550, subd. (e), count two) and maintaining a place for the sale of a controlled substance (Health & Saf. Code,  11366, count six).^[1] Allegations that Fuentes possessed a controlled substance, was an ex-felon in possession of a firearm, and two misdemeanor allegations were dismissed. A prior prison term enhancement and an enhancement for being personally armed with a firearm also were dismissed. Under the terms of the plea agreement, a lid of three years eight months was placed on Fuentess prison term.

On April 3, 2006, the trial court sentenced Fuentes to the California Rehabilitation Center (CRC) for three years on count two plus a consecutive term of eight months on count six for a total term of three years eight months. The court imposed a restitution fine and granted Fuentes applicable custody credits.

FACTS

On November 3, 2005, officers of a multi-jurisdiction law enforcement team went to High Power Communications at 219 Roberts Lane in Bakersfield to investigate the sale of illegal narcotics. Officer Driskell had received information from a private citizen that methamphetamine was being sold from this location, which appeared to be a cell phone store. Driskell learned that Ana and Joel Fuentes had been arrested in the past for manufacturing, transporting, and possession of methamphetamine.

In preparing a search warrant, Driskell obtained an FBI number and photograph of Joel Fuentes.^[2] He also obtained a photograph of Ana Fuentes. Officer Davidson of the U.S. Department of Homeland Security and Immigration Enforcement told Driskell that Joel Fuentes previously had been deported five times from the United States to Mexico. Davidson told Driskell to detain Joel Fuentes should he come into contact with him.

Ana Fuentes owned High Power Communications. When Driskell arrived at High Power Communications at about 4:30 p.m., there was a sign indicating the business was open. The sign listed business hours. On the front door, a piece of paper stated that the entrance and parking to the business were in the back.

Driskell asked Joel Fuentes to open the front door. When Fuentes did so, Driskell grabbed his hand and took him into custody. Ana Fuentes was 17 feet away and had a baby in a play crib. Driskell opened the back door and asked two officers waiting outside the door to enter. The officers conducted a protective sweep of the restroom and called Driskell over to observe what they could see. To get into the business from the back entrance, anyone entering had to walk through a narrow corridor. The restroom was located along the narrow corridor. When investigators initially entered the business, the restroom door was closed but not locked. When Driskell walked into the restroom, he saw two glass methamphetamine pipes, and something in a container he believed to be a scale.

During his contact with Ana Fuentes, Driskell observed symptoms indicating that she was under the influence of a controlled substance, including dilated pupils and general anxiousness. Driskell thereafter obtained a telephonic search warrant. When the officers executed the search warrant, they found a large baggie of what turned out to be methamphetamine in a couch and methamphetamine in a plastic baggie in a top drawer of an end table. The total quantity of methamphetamine was 27.9 grams. In a desk drawer, investigators found a handgun and 43 rounds of live ammunition. Ana Fuentes tested positive for amphetamines.

DISCUSSION

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised she could file her own brief with this court. On October 17, 2006, we invited appellant to submit a letter stating any grounds on appeal she would want this court to consider.

Appellant responded with a letter stating that her business closed early the day officers searched it because of a doctors appointment. Appellant states in her letter that the front window of the store showed a sign indicating the store was closed. According to appellant, when Driskell opened the rear door to the business, it already was closed to the public. Appellant states there was a handwritten sign in the restroom door that stated, Do Not Enter out of order per management. Appellant also states that the restroom was not available to the public because she kept inventory there and under no circumstances was anyone from the public allowed there.

We initially note that none of appellants proffered evidence was presented to the trial court. It is presented for the first time on appeal. Furthermore, appellants presentation of facts in her letter brief was contradicted by the testimony of investigators who explained that they were at the business at 4:30 p.m., and a sign in the front door indicated the store was open. Another sign in the front invited customers to enter the store through the back. The restroom was just off the rear corridor leading into the store and was not locked. When considering a trial courts denial of a suppression motion, we review the record in the light most favorable to the trial courts ruling. We defer to those findings of fact, express or implied, that are supported by substantial evidence. (People v. Davis (2005) 36 Cal.4th 510, 528-529.)

We next consider whether the investigators warrantless entry of the business was legal. One recognized exception to the requirement for a search warrant is where a business is open to the public. Under this exception, the government may enter and inspect commercial premises that are viewable to the public. (Marshall v. Barlows, Inc. (1978) 436 U.S. 307, 312-313; People v. Potter (2005) 128 Cal.App.4th 611, 618 (Potter).) Here, investigators entered a business open to the public. They did so with the invitation of a sign indicating the business was open during normal business hours. Another sign indicated there was parking in the rear of the business and that entry from that location was permitted.

Upon entering the business, investigators conducted a brief protective sweep. For such a sweep to be valid, there must be articulable facts of a potential danger. (See People v. Celis (2004) 33 Cal.4th 667, 678.) Both appellant and Joel Fuentes had past criminal records for selling and/or possessing illegal narcotics. A confidential citizen informant had provided investigators with information that there were illegal narcotics sales occurring from appellants business. These were articulable facts from which the officers could conduct a short protective sweep.

Whatever investigators saw during the sweep was in plain view. This included their observations of the restroom along the corridor leading into the store from the back. What is observable by the public can be viewed by the government without a warrant. (Potter, supra, 128 Cal.App.4th at p. 618.) Before investigators conducted any further search, including the searches that led to discovery of methamphetamine, they stopped to obtain a search warrant. We find no infirmity in the investigation of appellants business by law enforcement officials or in the trial courts denial of appellants motions to suppress, quash, and traverse the search warrant.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Gomes, J., and Kane, J.

^[1] Fuentes was advised of the consequences of her plea and given complete admonitions pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. The parties stipulated to a factual basis for the plea.

^[2] The warrant was based on Driskells contact with a confidential citizen informant who informed Driskell that the informant knew of people selling and using methamphetamine from the business at 219 Roberts Lane. Ana Fuentes presented no evidence independent of the investigating officers during the suppression hearing other than her testimony that she was the owner of High Power Communications.