P. v. Thouvenel

Filed 1/18/07  P. v. Thouvenel CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

          APPEAL from a judgment of the Superior Court for Los Angeles County, Michael A. Cowell and Patrick T. Meyers, Judges.  Affirmed.

          Russell Fong, under appointment by the Court of Appeal, for Defendant and Appellant.

          Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.

          Defendant and appellant Maxmiliano Thouvenel was convicted by a jury of possession of ammunition by a felon in violation of Penal Code[1] section 12316, subdivision (b)(1).  He appeals from the judgment, contending that his motion to suppress evidence -- the shotgun shells found in a car he was driving -- should have been granted because the peace officer who seized the shells did not have probable cause to believe that the shells were evidence of a crime.  Defendant cannot raise this assertion on appeal, however, because he did not assert it in his motion in the trial court.  In any event, the admission of the shells themselves did not prejudice defendant in light of witness testimony that there were shotgun shells in the car defendant was driving.  Accordingly, we affirm the judgment.

BACKGROUND

          Los Angeles County Sheriff's Deputy Raymond Hwang conducted a traffic stop on a car defendant was driving after a records check of the license plate number revealed there was an outstanding $20,000 warrant.  As Hwang approached the driver's side window, which was open, he saw several shotgun shells on the front passenger floorboard.  Hwang ordered defendant out of the car and instructed the passenger in the car to keep her hands on the dashboard.  He did a quick pat down search of defendant and placed him in the back seat of his patrol car, unhandcuffed.  He returned to the passenger side of the car and instructed the passenger, Amber Patino, to get out of the car and sit on the sidewalk.  He asked Patino about the shotgun shells.  She looked in the car, saw at least one of the shells, and told him they were not hers.  She also told Hwang that the car was hers, although it was registered in her mother's name. 

          After backup arrived, Hwang collected the shotgun shells and asked defendant about them.  Defendant told Hwang that he did not know who the shells belonged to.  He said that he had possession of the car for a few hours that day and that he had had some friends in the car earlier that day. 

          Defendant was arrested and charged with possession of ammunition by a felon.  While still in custody the following morning, he was interviewed by Detective David Cortinas.  He told Cortinas that the shotgun shells belonged to someone else, and that Cortinas would be receiving a telephone call later that day from a person defendant would not identify. 

          That afternoon, Cortinas received a call from a person who identified himself as Scott Streiff.  Streiff told him that the shotgun shells were his.  Cortinas asked Streiff to come down to the station to talk to him about the shells, but Strieff did not do so.[2]

          Defendant was charged by information with a violation of section 12316, subdivision (b)(1).  The information also alleged that defendant had two prior serious or violent felony convictions within the meaning of the Three Strikes law,[3] and two prior prison terms within the meaning of section 667.5, subdivision (b).  Before trial, defendant moved to suppress the shotgun shells Hwang seized from the car.  The trial court denied the motion.  Following the jury verdict and a bench trial on the prior conviction allegations, the court[4] granted defendant's motion to dismiss one of the prior convictions and one of the prior prison terms, and sentenced defendant to the mid-term of two years, doubled under the Three Strikes law, plus one year under section 667.5, subdivision (b), for a total of five years in prison.  Defendant appeals from the judgment.

DISCUSSION

          Defendant contends on appeal that the trial court erred by denying his motion to suppress because there was no evidence that at the time Hwang seized the shotgun shells he knew that defendant was a felon, and therefore there was no evidence that Hwang had probable cause to believe the shells were evidence of a violation of section 12316.  Although defendant is correct that a warrantless seizure of an item in plain view is constitutionally permissible only if the peace officer has probable cause to believe the item is evidence of a crime or contraband (see, e.g., People v. Stokes (1990) 224 Cal.App.3d 715, 719), defendant forfeited this contention by failing to raise it in the trial court.

          The California Supreme Court has explained the burdens on the prosecution and defendants on motions to suppress evidence.  Defendants moving to suppress evidence â€