P. v. Williams

Filed 9/7/07 P. v. Williams 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. Raymond L. Haight III, Judge. Affirmed.

Lizabeth Weis, 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, Michael Murphy, Supervising Deputy Attorney General, and Alana Cohen Butler, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant guilty of possessing marijuana for sale. (Health & Saf. Code, 11359.) Defendant admitted three prison priors. (Pen. Code, 667.5, subd. (b).) The court sentenced defendant to state prison for two years for the substantive crime and three years for the three prison priors. Defendants sole contention is that the trial court erred by denying his motion to suppress evidence recovered during a search of his apartment, because there was not substantial evidence to prove his consent to the search was given freely, voluntarily, and unequivocally.

FACTS

Defendant moved to suppress approximately two pounds of marijuana discovered during a search of his apartment. (Pen. Code, 1538.5.) Defendant objected to the evidence on the grounds that his consent to the search was equivocal and made under duress.

At the suppression hearing, Rialto Police Detective Stella testified that on April 6, 2006, he went to defendants apartment with two other officers in response to citizen complaints regarding suspected narcotics activity. When Detective Stella arrived, defendants front door was open. Detective Stella knocked on the door and defendant greeted him. Detective Stella then informed defendant that he was there due to citizen complaints regarding possible drug activity and asked defendant for identification. Detective Stella checked defendants identification, as well as the identification of another male in the apartment. Dispatch then informed the detective that defendant was wanted for a misdemeanor warrant. Detective Stella informed defendant of the warrant, repeated the reason for his visit, and asked for permission to enter the apartment for a search. Defendant told the detective that he could search the apartment. Detective Stella could not recall the exact words that were exchanged when he obtained defendants consent to search the apartment. After defendant consented, Detective Stella entered the apartment, began searching, and informed defendant that he would need to detain him for the warrant. At the trial, Detective Stella testified that the other two officers at the scene remained downstairs while he talked to defendant. While conducting the search, Detective Stella discovered approximately two pounds of marijuana.

At the suppression hearing, defendant testified that when Detective Stella arrived at the apartment, they talked for 10 to 15 minutes, then Detective Stella talked to dispatch and discovered defendants warrant. Defendant stated that Detective Stella then handcuffed him and asked, Do I got to kick the door down or are you going to let me come in? Defendant replied, Do what you got to do. Defendant testified that Detective Stella was standing with one foot in the apartment and one foot outside the apartment while talking to him. Defendant stated that he felt threatened and did not give Detective Stella consent to search his apartment.

Detective Stella denied asking defendant, Are you going to cooperate or do I have to kick in the door? Detective Stella testified that he would not make such a statement because the door was already open when he arrived. Detective Stella also denied that defendant made the statement, Do what you have to do in response to his request to search the premises.

On cross-examination, defendant acknowledged the door to his apartment was open when Detective Stella arrived and remained open the entire time Detective Stella was at the apartment. He believed that Detective Stellas threat to kick the door down was a psychological ploy to intimidate him.

The court found Detective Stellas testimony to be credible, because it was consistent with the facts of the case. The court found defendants testimony was not credible, because the door was open when Detective Stella allegedly asked, Do I got to kick the door down or are you going to let me come in? Based on Detective Stellas testimony, the court found defendant made a clear, unequivocal, free and voluntary consent to search.^[1] The court denied the motion to suppress.

A jury found defendant guilty of possessing marijuana for sale. (Health & Saf. Code, 11359.) Defendant admitted having three prison priors. (Pen. Code, 667.5, subd. (b).) Defendant was sentenced to five years in state prison: Two years for the violation of Health and Safety Code section 11359 and one year each for the three prison priors (Pen. Code, 667.5, subd. (b)).

DISCUSSION

Defendant contends that the trial court erred by denying his motion to suppress the evidence from Detective Stellas search of his apartment because he consented to the search under duress, and his consent was not given clearly, freely, voluntarily, and unequivocally.

If, under all the circumstances, it appears that consent to a search was not given voluntarily as a result of coercion, threats, or force, then the consent is invalid and the search unreasonable. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 233 [93 S.Ct. 2041, 2050-2051].)

We review the trial courts denial of defendants motion to suppress by first determining if substantial evidence supports the courts findings of fact. If those findings are supported, we exercise independent judgment to decide whether the search was reasonable. (People v. Glaser (1995) 11 Cal.4th 354, 362.) In deciding whether substantial evidence supports the decision of the trial court, we do not resolve issues of credibility or evidentiary conflicts. Resolving conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient . . . . (People v. Young (2005) 34 Cal.4th 1149, 1181.)

The trial courts finding that defendant freely, voluntarily, and unequivocally gave his consent to search his apartment is supported by the testimony of Detective Stella. The detective testified that he asked defendant for permission to search the apartment prior to entering the premises and that defendant consented to the search. Although defendants testimony regarding the facts of the case differs from Detective Stellas, we must resolve all conflicts in favor of the trial courts ruling. Detective Stellas testimony provides substantial evidence for the trial courts finding that defendant freely, voluntarily, and unequivocally gave his consent to the search.

We conclude that the trial court did not err by denying defendants motion to suppress evidence from the search of his apartment.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

GAUT

J.

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^[1] The court also found, based on defendants testimony, that there was valid consent to search the apartment. However, because it might be possible to interpret defendants version of the events as providing only an acquiescence to Detective Stellas request, the court clarified that it was basing its finding of valid consent on the testimony of Detective Stella.