P. v. Luarte

Filed 3/27/07 P. v. Luarte CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant George Alberto Luarte appeals from a judgment entered upon his negotiated plea of no contest to possession of methamphetamine for purpose of sale (Health & Saf. Code,  11378), suspending the imposition of sentence, and placing him on supervised probation for three years on the condition that he serve six months in the county jail (with 14 days credit for time served) and that he comply with other standard probation conditions. He was also ordered to pay a $200 restitution fine (Pen. Code,  1202.4), a $50 criminal laboratory fee (Health & Saf. Code,  11372.5), a $150 drug program fee (Health & Saf. Code,  11372.7), a $20 court security fee (Pen. Code,  1465.8), and a $75 per month supervised probation fee (Pen. Code,  1203.1, subd. (b).) He timely appeals from the denial of his motion to suppress evidence under Penal Code section 1538.5.

Defendants attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 requesting the court to review the record independently, and confirming that defendant has been advised of his right to file a supplemental brief. No supplemental brief having been submitted, the court has reviewed the record and found no issue meriting further briefing or casting doubt on the propriety of the trial courts order denying the motion to suppress.

Defendants motion was considered on the basis of the testimony of Brisbane Police Officer Robert Guaydacan. The officer testified that at approximately 12:33 p.m. on August 17, 2005, while on patrol in a marked police car, he noticed that a female in the passenger seat of a car being driven by defendant did not appear to have her seatbelt fastened. The officer recognized the passenger as the 17-year-old victim of a recent statutory rape case and observed the male driver to be between 30 and 35 years. While following the car Guaydacan radioed the license plate into dispatch and learned that its registered owner was a registered sex offender and that there was a release of liability on file to a person, the defendant, whose drivers license had been suspended. The officer then made a traffic stop based on the suspected seatbelt violation and to check on the welfare of the female passenger. He readily determined that the seatbelt was properly fastened, and then asked to see defendants identification. Defendant gave the officer a California I.D. card, told him that his drivers license had been suspended and that he did not have insurance on the car, and handed the officer superior court documents bearing that days date which he said indicated that his drivers license was to be reinstated. Although defendant indicated he considered the court order to have removed the suspension, it was Guaydacans understanding that the suspension remained in effect until the Department of Motor Vehicles reinstated the license, and that it was unlawful to drive without a valid license and also unlawful to drive without insurance. The officer then requested identification from the passenger, who provided a Texas identification card but did not have a drivers license. There being no licensed driver for the vehicle, Guaydacan determined that the vehicle would have to be towed.

At this point Guaydacan asked defendant to speak to him outside the car, defendant agreed to do so, and they spoke on the sidewalk. The officer asked defendant some questions about the female passenger, being told they were not in a sexual relationship, which was later confirmed by the passenger. He then asked defendant for permission to search the car and defendant consented. A backup officer arrived, a tow truck was called, and Guaydacan then asked whether there was anything illegal in the car, to which defendant responded there was a loaded shotgun in a black case. Guaydacan then told defendant he was being detained and placed him in handcuffs. The ensuing search of the vehicle disclosed that the gun in the black case was only a paint ball gun, but a black vinyl case was found containing four bags of suspected methamphetamine, drug paraphenalia, and notes with names and dollar amounts. Following advisement of his rights under Miranda v. Arizona (1966) 384 U.S. 436, defendant acknowledged that the black bag and methamphetamine belonged to him.

Defendants brief detention and the search of the vehicle he was driving violated none of his constitutional rights. The traffic stop and request for driver identification were based on specific articulable circumstances: the appearance that the passenger was not wearing a seatbelt (Kodani v. Snyder (1999) 75 Cal.App.4th 471, 476-477), in addition to the officers concern for the well-being of the juvenile passenger. Although Guaydacan quickly observed that there was no seat belt violation, he also learned that defendant had been driving without a valid drivers license and without proof of financial responsibility, both violations of the Vehicle Code that justify a brief detention. (Veh. Code, 12951, 16020; see Whren v. United States (1996) 517 U.S. 806, 810 [As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred].) There was nothing wrong with the police officers request that defendant step out of his car (e.g., Pennsylvania v. Mimms (1977) 434 U.S. 106; People v. Wilborn (1999) 70 Cal.App.4th 339, 348), and according to the uncontradicted testimony of the officer defendant then voluntarily consented to the search. A reasonable search without a warrant of the vehicle and the vinyl bag found in the car was thus authorized by defendants consent (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 243-246; People v. Williams (1980) 114 Cal.App.3d 67, 72-74), by the standard practice of conducting an inventory search before towing the vehicle (People v. Scigliano (1987) 196 Cal.App.3d 26, 31), as well as by defendants statement that there was a loaded shotgun in the car (People v. Greer (1980) 110 Cal.App.3d 235, 238-239). Defendants motion to suppress was properly denied.

Defendant was at all times represented by competent counsel, and the record discloses no basis for reversal. Hence, the judgment is affirmed.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Parrilli, J.

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