P. v. Vallejo

Filed 7/23/07 P. v. Vallejo CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Jeffrey M. Harkavy, Judge. Affirmed.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth N. Sokoler and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Appellant Jose Emiliano Vallejo appeals from the judgment entered following his plea of no contest to possessing a controlled substance (Health & Saf. Code,  11350, subd. (a)). The court suspended imposition of sentence and placed him on formal probation for three years. Appellant claims the trial court erroneously denied his Penal Code section 995 motion. We affirm the judgment.

FACTUAL SUMMARY

The record reflects that on March 15, 2006, appellant possessed .31 grams net weight of a substance containing cocaine base, and .33 grams net weight of a substance containing cocaine, in Los Angeles.

CONTENTION

Appellant contends (1) the trial court erroneously failed to suppress drug evidence recovered as a result of an illegal detention, and (2) appellants illegal detention tainted his consent to search and the drug evidence must be suppressed.

DISCUSSION

The Trial Court Properly Denied Appellants Penal Code Section 995 Motion.

1. Pertinent Facts.

a. Suppression Hearing Evidence.

(1) Peoples Evidence.

Viewed in accordance with the usual rules on appeal (People v. Laiwa (1983) 34 Cal.3d 711, 718), the evidence presented at the joint preliminary hearing and hearing on appellants Penal Code section 1538.5 motion established as follows. About 2:55 p.m. on March 15, 2006, plainclothes Los Angeles Police Detective Travis Coyle, assigned to a narcotics division, was in an unmarked patrol car in an alley behind 13441 Van Nuys. Coyle was looking for a vehicle that had been reported as stolen. Coyle saw an abandoned Toyota minivan which did not appear to be in operating condition.

Coyle had seen the minivan at the above location several times before. Coyle was familiar with the minivan because about March 8, 2006, he read a police report. The report reflected that on March 4, 2006, an occupant of the minivan had possessed a large quantity of drugs and had been arrested, and someone had complained that narcotics were being sold from the minivan. The minivan was in the same area where it had been on March 4, 2006. The report indicated that Christian Martinez was the person arrested in the case which was the subject of the report.

When Coyle saw the minivan, he also saw a male Hispanic with a cupped right hand exit the minivans right cargo door and walk in the alley. The male and appellant walked towards each other and conversed. The male whose right hand was cupped hand[ed] the item to appellant. Appellant handed the male an item which was in appellants right hand, the male took the item with his left hand, and the male gave appellant an item which was in the males cupped right hand. Coyle, who had training and experience in the possession and sales of narcotics, opined at the time that a narcotics transaction had occurred.

Coyle advised Los Angeles Police Detective Windham that Coyle observed what appeared to have been a narcotics transaction, and Coyle conducted surveillance of appellant until Windham arrived. Appellant walked to a location about one quarter of a mile away, near Van Nuys and Haddon. About three to five minutes after Coyle called Windham, he arrived. The detectives exited their vehicles and approached appellant. As Coyle approached appellant, Windham was probably eight to twelve feet behind Coyle, monitoring the area for safety.

Coyle approached appellant from behind and said Hey, amigo. Appellant stopped and turned around, and Coyle identified himself as a police officer. Coyles badge was hanging in plain view from his neck, and Coyle held the badge. Coyle asked appellant if he spoke English, and appellant said he did not. Coyle asked if appellant lived around there, and appellant said he lived in the street. Coyle then asked appellant if he had any identification, and appellant replied he did not. Coyle asked if appellant had any drugs, and he replied no. Coyle then asked if he could check. Appellant was cooperative. He said yes, then turned around and put his hands up.

Coyle searched appellant and found in his left rear pocket .31 grams net weight of a substance containing cocaine base and .33 grams net weight of a substance containing cocaine. About a minute passed from the time Coyle said Hey, amigo to the time he recovered the narcotics.

During cross-examination, Coyle testified he drove into a parking lot as appellant was crossing Haddon, and Coyle exited his vehicle. Appellant, during cross-examination, asked Coyle from which way did appellant come. Coyle testified that by the time he parked, appellant was near a bus stop, then continued walking, And I stopped him at, theres the building for this parking lot. And there is a second building . . . . He was about right here when I came up and said Hey, amigo.

Los Angeles Police Officer Carlos Sanchez testified as follows. On March 15, 2006, appellant waived his Miranda rights[1] and Sanchez interviewed him. Appellant told Sanchez that appellant bought the rock cocaine from some guy in the alley for $15. Appellant said he usually smoked once or twice a week, and had smoked rock cocaine for the past three months.

(2) Defense Evidence.

In defense, appellant testified as follows. Appellant remembered Coyle. On March 15, 2006, appellant was walking in the street. Coyle came running behind appellant and twice said Stop. Coyle turned appellant around, started searching him, and asked appellant if he had identification. Appellant replied it had been stolen. Appellant also testified that Coyle twice said Stop, then touched appellants shoulders and put him against the wall. After Coyle put appellant against the wall, Coyle searched appellants pockets.

During cross-examination, the prosecutor asked if appellant was in an alley in the vicinity of Van Nuys on March 15, 2006. Appellant replied, No. I was coming from work, and I went through that alley. (Sic.) The following then occurred: Q. So you never contacted anybody in a blue mini van; is that your statement? [] A. No. I didnt have contact. He asked me for a cigarette, and I gave him a cigarette. (Sic.) Appellant handed the box to the man. The man took a cigarette from it, then returned the box to appellant. The man did not pay for the cigarette. Appellant had met the man before. Appellant had seen the man a few times in the streets at the store across. (Sic.) Appellant had never been through the alley before. Appellant did not, during his testimony, expressly deny that on March 15, 2006, the man gave appellant narcotics.

Appellant denied seeing Coyles badge. Appellant did not testify Coyle was not wearing one. Coyle did not ask if he could search appellant, and appellant did not tell Coyle to stop searching him. Appellant lived on the corner of Arleta and Pierce. He did not know his address. He never reported to police that his immigration visa and California identification card had been stolen.

b. Suppression and Penal Code Section 995 Proceedings.

In March 2006, appellant filed a Penal Code section 1538.5 suppression motion. On April 7, 2006, a magistrate conducted a joint preliminary hearing and hearing on appellants suppression motion. After the presentation of evidence, appellant argued, inter alia, that the magistrate should have granted his suppression motion because appellant was illegally detained. The magistrate indicated that as to any conflict between the testimony of Coyle and appellant, the magistrate believed Coyle and not appellant. The magistrate denied the motion, concluding appellants encounter with Coyle was consensual and not a detention, and appellant willingly consented to his search. The evidence was received at the preliminary hearing and appellant was held to answer. Appellant filed a Penal Code section 995 motion, raising the issue that he had been illegally detained. The trial court denied the motion on the ground the magistrate had made a factual finding regarding the believability of witnesses.

2. Analysis.

Appellant presents related contentions that he was illegally detained, and his consent to search was the product of an unlawful detention; therefore, the seizing of the narcotics and appellants statement to Sanchez were products of the unlawful detention and the trial court erroneously denied appellants Penal Code section 995 motion. We reject appellants contentions.

a. Pertinent Law.

Appellant raised his Fourth Amendment issues in the context of a Penal Code section 995 motion. [I]n proceedings under [Penal Code] section 995 it is the magistrate who is the finder of fact; the superior court . . . sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citation.] On review by appeal . . . , moreover, the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer. [Citations.] (People v. Laiwa, supra, 34 Cal.3d at p. 718.)

b. Appellants Encounter with Coyle Was Consensual.

There is no dispute that appellant validly consented to his search, and the search was lawful, unless the consent was the product of an unlawful detention. For the reasons discussed below, we conclude there was substantial evidence that Coyle did not illegally detain appellant.

A person is seized within the meaning of the Fourth Amendment only when
the person is physically restrained or voluntarily submits to a peace officers show of authority. (People v. Johnson (1991) 231 Cal.App.3d 1, 10-11; People v. Arangure (1991) 230 Cal.App.3d 1302, 1307.) The requisite show of authority exists when a reasonable person would believe that the person was not free to leave. (People v. Johnson, supra, 231 Cal. App.3d at pp. 10-11; People v. Arangure, supra, 230 Cal.App.3d at pp. 1305- 1308.)

Law enforcement officers do not violate the Fourth Amendments prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. [Citations.] Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage -- provided they do not induce cooperation by coercive means. [Citation.] If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.
(United States v. Drayton (2002) 536 U.S. 194, 200-201 [153 L.Ed.2d 242, 251]; see Wilson v.Superior Court (1983) 34 Cal.3d 777, 789.)

Based on the Peoples evidence, there was substantial evidence as follows. Coyle approached appellant from behind and said Hey, amigo. Appellant stopped, but Coyle never asked or ordered that appellant do so. Coyle, whose badge was in plain view, merely asked appellant a series of questions including whether Coyle could search appellant. There was substantial evidence that the requisite show of authority did not occur and, therefore, that no detention occurred. (Cf. People v. Bouser (1994)
26 Cal.App.4th 1280, 1282-1284.)  Appellants conflicting and self-serving testimony does not compel a contrary conclusion.

c. Any Detention of Appellant Was Lawful.

Even if appellant was detained, that would not help him. A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts which, considered in light of the totality of the circumstances, provide an objective manifestation that the person detained may be involved in criminal activity. (People v.Souza (1994) 9 Cal.4th 224, 231.) Moreover, if an objectively reasonable basis for a detention exists, the issue of whether an officer actually relies on that basis to detain, and the issue of the officers subjective intent or motivation in detaining, are irrelevant.
(Cf. People v. Valencia (1993) 20 Cal.App.4th 906, 915-916; People v. Miranda (1993) 17 Cal.App.4th 917, 923-926; People v. Uribe (1993) 12 Cal.App.4th 1432, 1435-1438.)

Based on the Peoples evidence, there was substantial evidence that on March 15, 2006, Coyle was looking for a vehicle that had been reported stolen. He saw the abandoned minivan. Coyle was familiar with the minivan and had seen it several times. On about March 8, 2006, Coyle, assigned to a narcotics division, read a police report. The report reflected that on March 4, 2006, an occupant of the minivan had possessed a large quantity of drugs and had been arrested, and someone had complained that narcotics were being sold from the minivan. The report also indicated the arrestee was a person whose last name was Hispanic. His full name permitted the inference he was a male Hispanic. On March 15, 2006, Coyle saw a male Hispanic exit the minivans right cargo door.

In the context of the above circumstances, Coyle saw the male Hispanic, with a cupped right hand, exit the minivan and approach appellant. The two engaged in conduct which Coyle, based on his training and experience, opined at the time was a narcotics transaction. Coyle later approached appellant and appellant stopped.

Even if Coyle detained appellant when appellant stopped, we conclude there was substantial evidence that Coyle had an objectively reasonable basis to detain appellant for possession of narcotics, and any detention was lawful. (Cf. People v. Souza, supra, 9 Cal.4th at p. 231.) Appellants self-serving testimony did not compel a contrary conclusion. We note that although appellant testified to the effect that he gave a cigarette box to a man and received it back, appellant did not, during his testimony, expressly deny that he also had engaged in a hand-to-hand narcotics transaction, which is what Coyle opined, at the scene, that he had observed.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P.J. ALDRICH, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line Lawyers.

[1] Appellant stipulated he waived his Miranda rights.