P. v. Ortman

Filed 2/23/07 P. v. Ortman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Frank William Ortman appeals from a judgment of conviction entered following a jury trial on three drug related charges. His appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and, after being advised of his right to do so, defendant has filed no supplemental brief. Having conducted an independent review of the record, we find no issue of colorable merit and shall affirm.

Background

On September 21, 2005, defendant was charged by complaint with possession for sale of a controlled substance (Health & Saf. Code,  11378), sale or transportation of a controlled substance (Health & Saf. Code,  11379), and possession of paraphernalia (Health & Saf. Code,  11364). At the preliminary hearing, Deputy Sheriff Daniel Schneck testified that on September 12, 2005, he conducted a traffic stop of a car in which defendant was a passenger. Defendant was seated in the front passenger seat with a backpack between his feet. Although Schneck did not hear defendant consent to be searched, he believed that another officer, Deputy Garcia, asked for consent to search the vehicle, and Frank Ortman gave consent. The officers found close to 100 small baggies, several glass pipes and a white crystal-like substance in the backpack. The officers searched defendant and found approximately $1,100 in cash in his pocket. Deputy Sheriff Bill Steven testified that the white crystal-like substance recovered from the backpack was tested and determined to be methamphetamine. Based on the items recovered from the backpack and large amounts of cash in defendants pocket, he believed in his expert opinion that the methamphetamine was being possessed for sale. Steven also testified that at the scene of the traffic stop he was told by Garcia that defendant had stated that it was his backpack, but he didnt know what was in it. Defendants attorney did not move at the preliminary hearing to suppress any of the evidence seized from defendants person or from the backpack. She did, however, put on record [her] concern with regard to the testimony that apparently [Garcia] said that Frank Ortman testified it was his backpack. She explained, I see him coming into the 1538.5 hearing and then testifying definitely, and then I think weve got a problem there. But I guess we can address that in a 995 later. At the conclusion of the hearing, the court found that there was sufficient evidence to hold defendant to answer on all of the crimes charged.

On December 6, 2005, defendant filed a motion to dismiss pursuant to Penal Code section 995.[1] The motion was made on the grounds that [t]here was no testimony presented at the [preliminary] hearing to show what probable cause the police had to search defendants person and that there was no real testimony about ownership of the backpack wherein all of the illegal items were found. The motion was heard on Friday December 9. The trial court denied the motion, finding that there was sufficient evidence by which the magistrate could have found sufficient evidence to hold defendant to answer on all three counts and sufficient evidence by which the magistrate could believe that the search was valid in this case. At the conclusion of the hearing, defendants attorney made an oral motion to continue the trial, which was set to begin the following Monday, on the ground that she wanted to file a motion to suppress. The trial court denied the motion as untimely.

The testimony at trial was largely consistent with and expanded upon the testimony given at the preliminary hearing. Garcia testified that after stopping the car, the driver was issued a citation and a second passenger was arrested on a parole warrant. Garcia explained to defendant that the officers would be searching the compartment of the vehicle incident to the arrests of the other passengers. Garcia testified that he asked defendant who the backpack belonged to and defendant answered that it was his and said that [t]here might be some meth pipes inside it. The jury found defendant guilty as charged.

The court sentenced defendant to the middle term of three years for the transportation of a controlled substance with a two year concurrent term for the possession for sale charge and a concurrent 180 days for the paraphernalia charge. The court imposed fines and fees totaling $270, imposed and suspended a parole revocation fine of $200, awarded 108 days of custody credits and ordered genetic marker testing pursuant to section 296.

Discussion

Substantial evidence supports the magistrates finding of probable cause to believe a crime had been committed and that defendant was the perpetrator. The trial court properly denied defendants section 995 motion challenging the sufficiency of that evidence. As the trial court noted, the fact that the backpack was located between defendants feet in combination with Schnecks testimony that his partner told him that defendant said the backpack was his was sufficient to reject defendants claim that he had been committed without reasonable or probable cause. ( 995, subd. (2)(B).) The trial court properly determined that Garcias hearsay statements were admissible to establish probable cause at the preliminary hearing. ( 872, subd. (b); Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1072-1073 [under  872, subd. (b), qualified investigating officer may testify about otherwise inadmissible hearsay statements made to him by persons he has interviewed]; Tu v. Superior Court (1992) 5 Cal.App.4th 1617, 1622 [double or multiple hearsay statements are admissible if they qualify under some other exception to the hearsay rule].) Defendants statement to Garcia that the backpack belonged to him was independently admissible under Evidence Code section 1220. (People v. Castille (2005) 129 Cal.App.4th 863, 875-876.)

The trial court properly rejected defendants motion to suppress as untimely. Under section 1538.5, subdivision (i), notice of a motion to suppress must be given to the People at least 10 days prior to the start of trial.[2] Defendants request for a continuance to file a motion to suppress was made late in the afternoon on the Friday before trial and as the trial court correctly observed, from the colloquy and the testimony that took place at the preliminary hearing, whatever reasons there may have been for such a motion were . . . right there. The explanation by defendants attorney that she did not file the motion sooner because she was negotiating a plea bargain with the prosecutor on a second charge against defendant did not compel the court to excuse the delay. (See People v. Frazier (2005) 128 Cal.App.4th 807, 829 [trial courts denial of motion to suppress as untimely was not error where defendants counsel had been employed on the case for two months and defendant presented no persuasive justification for delay in bringing the motion].) In any event, the search of the backpack was apparently justified as incident to the arrests of the other occupants of the car. (New York v. Belton (1981) 453 U.S. 454, 460 [when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile and police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach (fns. omitted)].) And, if the court had permitted the motion to be filed, the prosecutor undoubtedly would have presented in opposition to the motion Garcias testimony that was presented at trial that defendant acknowledged there was contraband in the backpack before it was searched, providing another justification for the search and rendering harmless any conceivable error in denying the continuance.

Substantial evidence supports the jury verdict. The location of the backpack in the car, in conjunction with Garcias testimony that defendant admitted the backpack was his, is sufficient to establish defendants ownership of the backpack. The substantial amount of money on defendants person, the large number of individual baggies in the backpack and Stevens properly received expert opinion amply support the finding that defendant possessed the methamphetamine for sale.

There was no sentencing error. Defendant was adequately represented by counsel at all stages of the proceedings.

Disposition

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Parrilli, J.

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[1] All statutory references are to the Penal Code unless otherwise noted.

[2] Section 1538.5, subdivision (i), provides in relevant part: If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing . . . the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time.