P. v. Solano

Filed 10/24/07 P. v. Solano CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Graham Anderson Cribbs, Judge; Thomas N. Douglass, Jr., Judge. Affirmed.

Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney, and Randall D. Einhorn, Deputy Attorney General, for Plaintiff and Respondent.

I. PROCEDURAL BACKGROUND^[1]

A. RiversideCountySuperior Court Case Number INF052330

Defendant was charged in an information with one count of receiving stolen property (Pen. Code,^[2] 496, subd. (a)), and it was also alleged that defendant had three prison prior terms ( 667.5, subd. (b)).

Defendant filed a written motion to suppress evidence under section 1538.5. The trial court denied the motion.

Following trial, the jury found defendant guilty as charged. The trial court granted the Peoples request to dismiss one prison prior allegation and found the remaining two prison priors to be true. The trial court sentenced defendant to the middle term of two years for receiving stolen property, plus a consecutive one-year term for each of the two prison priors.

B. RiversideCountySuperior Court Case Number INF054499

Defendant was charged in count 1 with being a person in custody unlawfully possessing a weapon ( 4502, subd. (a)), and in count 2 with being a person in custody unlawfully manufacturing a weapon ( 4502, subd. (b)). It was also alleged that defendant had two prison priors ( 667.5, subd. (b)).

Defendant pleaded guilty to count 2, and the court granted the Peoples motion to dismiss count 1 and both prison priors. Defendant was sentenced to a term of eight months (one-third the middle term), to be served consecutively to the sentence imposed in case number INF052330.

II. FACTS^[3]

In our summary, the evidence is presented in the light most favorable to the ruling below. (See People v. Leyba (1981) 29 Cal.3d 591, 596-598, superseded by statute on other grounds as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) Because defendants only challenge on appeal is to the denial of his motion to suppress, we set forth the evidence as it was presented at the motion to suppress.

On October 29, 2005, Palm Springs Police Officer Simon Min was patrolling an area that had recently suffered 13 burglaries. Officer Min noticed a Nissan Altima with three occupants parked in front of the local rabbis house. Concerned there might be a burglary in progress, Officer Min made a U-turn and pulled up behind the parked Nissan. For officer safety reasons, Officer Min turned on his high beams and spotlight to illuminate the Nissan and then parked behind the Nissan. Officer Mins partner arrived in a separate patrol car; he also focused his lights on the Nissan, and he parked to the side of the Nissan. The patrol cars were parked so that defendant could have pulled forward and driven away.

Officer Min ran the Nissans license plate number, and the car came back as clean in other words, it had not been reported stolen.

Two men and a woman were inside the Nissan; defendant was in the drivers seat. Officer Min recognized defendant because the officer had previously arrested defendant and knew he was a gang member. Officer Min asked the occupants of the Nissan what they were doing in the neighborhood, and they responded that they were waiting for their friend, Darnell. Officer Min asked where Darnell lived. They indicated Darnell lived at the residence they were parked in front of, the rabbis house. Officer Min knew that no one named Darnell lived there, and he concluded the occupants of the Nissan were lying.

Officer Min obtained identity information from the Nissans occupants and radioed dispatch to determine if any of them had warrants or were on probation or parole. He learned that defendant and the male passenger were on probation, and the woman had had prior contacts with the police. Officer Min returned to the Nissan. He noticed the ignition was punched, and black electrical tape held up the ignition. Based on his training and experience, Officer Min believed it was an unreported stolen vehicle, which would not appear in the system. Accordingly, Officer Min drew his weapon and ordered the occupants to exit the car and put their hands up. He then arrested defendant on suspicion of automobile theft.

Officer Min searched defendant and retrieved a black pouch from defendants pocket. The pouch contained keys to a Jaguar, the certificate of title to a Jaguar, and checks. (Evidence at trial showed that the Jaguar, including its keys and title, had been reported stolen in July 2005. The checks had also been stolen in October 2005.) Once at the jail, defendant told Officer Min he had found the pouch at a restaurant and had taken it to sift through its contents.

After defendants arrest, Officer Min contacted the Redondo Beach Police Department and asked the department to contact the vehicles owner. Initially, the owner could not be reached. Testimony at trial revealed that the owner of the Nissan had authorized defendant and the others to drive the car, but the owner knew nothing about the ignition damage.

III. DISCUSSION

Defendant contends the trial court erred in denying defendants motion to suppress evidence because the police did not have probable cause to arrest him, and the warrantlesss search subsequent to his arrest violated the constitutional protections of the Fourth Amendment. Defendant argues that because the evidence obtained to support his conviction for receiving stolen property was acquired through an unreasonable search and seizure, his conviction must be reversed.

A. Standard of Review

In ruling on a motion to suppress evidence at trial, a court must (1) find the historical facts, (2) select the applicable rule of law, and (3) determine whether the rule of law, as applied to the established facts, was or was not violated. (People v. Alvarez (1996) 14 Cal.4th 155, 182.) We review the trial courts determination of the questions of fact using the deferential substantial evidence standard. (People v. Williams (1988) 45 Cal.3d 1268, 1301.) However, we subject the trial courts resolution of the second and third prongs of the inquiry to independent review. (Ibid.) If the trial courts factual findings are supported by substantial evidence, we must uphold them, and then independently apply the proper constitutional standards to those facts. (People v. Ayala (2000) 23 Cal.4th 225, 255 (Ayala).)

B. Analysis

The principal question raised in this appeal is whether the warrantless search subsequent to defendants arrest was constitutional within the meaning of the Fourth Amendment. The Fourth Amendment, to which states are bound through the Due Process Clause of the Fourteenth Amendment (Mapp v. Ohio (1961) 367 U.S. 643, 655-656), proclaims that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . . (U.S. Const., 4th Amend.) The core purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitraryinvasions by government officials. (Camara v. Municipal Court (1967) 387 U.S. 523, 528.)

Although at the motion to suppress and in its brief on appeal the People focused on whether defendant had been detained before his arrest, that issue is immaterial to our Fourth Amendment analysis because no evidence was seized before the arrest. We therefore focus on whether defendants arrest on suspicion of automobile theft was lawful.

Once an officer has probable cause to arrest, a subsequent search of the individual becomes justified as a search pursuant to arrest. (New York v. Belton (1981) 453 U.S. 454, 460.) Probable cause to arrest arises when the known facts would lead an officer of ordinary care and prudence to believe and conscientiously entertain a strong suspicion that an individual is guilty of a crime. (People v. Price (1991) 1 Cal.4th 324, 410, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161.) [P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands. . . . In making a determination of probable cause the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts. (Illinois v. Gates (1983) 462 U.S. 213, 243, fn. 13.)

The trial court found that Officer Min had probable cause to arrest defendant. We agree with that conclusion. Officer Min had observed that the Nissans ignition had been punched and was held in place with electrical tape. The officer had previously arrested defendant and knew him to be a gang member. He also knew that defendant and the other man in the car were subject to probation conditions, and the woman had had previous police contacts. The occupants of the car provided what Officer Min believed to be a false reason for their presence in a neighborhood that had been subject to a spate of recent burglaries. Officer Min had substantial experience with stolen vehicles, and although a check of the Nissan came back clean, he believed it might have recently been stolen and the theft unreported.

These facts and circumstances established probable cause to arrest defendant on suspicion of automobile theft. The subsequent search of defendant was therefore a lawful search incident to arrest, and the trial court did not err in denying the motion to suppress evidence.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

RICHLI

J.

MILLER

J.

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^[1] On January 22, 2007, this court consolidated appeal numbers E041051 (INF052330) and E041133 (INF054499).

^[2] All further statutory references are to the Penal Code unless otherwise indicated.

^[3] The only issue on appeal relates to case number INF052330; therefore, only the facts of that case are set forth in the statement of facts. Case number INF054499 was resolved through a guilty plea.