P. v. Rose

Filed 9/13/07 P. v. Rose CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Anita H. Dymant, Judge. Affirmed.

David D. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

John A. Rose appeals from judgment entered following his no contest plea to possession for sale of cocaine (Health & Saf., Code  11351.5). Pursuant to his negotiated plea, he was sentenced to the low term of three years.[1]

The record of the motion to suppress evidence establishes that on October 26, 2005 at approximately 11:00 p.m., Los Angeles Police Officer Michael Fernandez observed a male approach appellant, who was standing at the corner of 5th and Main Streets, and hand appellant some U.S. currency. In return, appellant reached into his rear waistband, where his underwear was and removed a black plastic bindle. Appellant opened the bindle and removed an object and handed it to the male. Officer Fernandez was of the opinion that appellant was engaged in the sale of narcotics. Officer Fernandez continued to watch appellant and observed five or six similar transactions.[2] Thereafter, as Officer Fernandez and his partner drove to the area of 5th and Main Streets, they observed appellant at Los Angeles and 5th Streets. The officers exited their vehicle and detained appellant for the narcotics loitering and sales and asked him if he was on parole. Appellant stated he was, and the officers handcuffed him. When Officer Fernandezs partner began to search appellants waistband area, appellant began to tense up his lower extremities. No narcotics were found but $66 in cash was found in appellants pocket. Appellant was transported back to the police station. He was angry and yelling Tragniew Park, which is a Compton gang. Officer Fernandez did not know if there was a videotape recording of the observations at 5th and Main Streets.

At the station, the watch commander authorized a strip search of appellant. Approximately four officers were required to remove appellant to a private room so he could be searched. Appellant was yelling and screaming and had clenched fists. He moved from side to side, trying to break the grip of the officers who were holding onto him. Appellant was given the option of having his handcuffs removed and undressing himself, but he refused and stated the officers had no right. Officer Suviate removed a black plastic bindle he saw protruding from between the cheeks of appellants buttocks. It was Officer Fernandezs opinion that the off-white rocks contained in the bindle were cocaine base, possessed for sale.

Appellant testified that he was at 5th and Los Angeles Streets with his brother-in-law on their way to their car when they were stopped by police officers. When appellant told Officer Fernandez he was on parole, appellant was handcuffed and put in a patrol car. Appellant denied selling drugs on that street that evening.

Appellant was taken to a room at the police station and put face down on the floor. When his clothes were pulled off, he asked what was going on and one officer put a taser gun to his head. One officer grabbed [his] . . . butt cheeks and spread[] [his] butt cheeks open while another Officer [Fernandez]. . . stuck his hand up in [his] . . . anus. Appellant claimed he was tackled to the ground with his arms and legs out like Superman. Appellant denied becoming aggressive or refusing to have the strip search performed. Approximately a week or two weeks after his arrest, appellant was treated in jail for bleeding from his rectum. Appellant admitted that he previously was convicted of second degree robbery and possession of cocaine.

The court denied appellants suppression motion finding there was probable cause to arrest appellant and the subsequent search was not unreasonably intrusive.

Appellants Marsden[3]motion was heard and denied.

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On June 14, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On June 28, 2007, appellant filed his supplemental brief claiming he had not been selling drugs. Additionally, he repeated his testimony that officers held his arms and legs while another officer conducted a body cavity search, causing extreme pain and bleeding. He claimed the officer kept working his hand up inside of appellants anus until his wrist had disappeared. Appellant admitted the officers extracted some drugs but claimed they did not have probable cause to subject appellant to the search in the first place or to a body cavity search.

We have examined the entire record and are satisfied that no arguable issues exist. In reviewing the trial courts denial of a motion to suppress evidence, we view the record in the light most favorable to the trial courts ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial courts application of the law to the facts. [Citation.] (People v. Jenkins (2000) 22 Cal.4th 900, 969.)

The superior court specifically found appellants version of events to be not credible or accurate. Viewing the evidence in the light most favorable to the trial courts ruling, the police had probable cause to arrest appellant. (See People v. Guajardo (1994) 23 Cal.App.4th 1738, 1742.) Thereafter, a post arrest search of appellants body to discover controlled substances was permissible. (See People v. Wade (1989) 208 Cal.App.3d 304, 307; People v. Scott (1978) 21 Cal.3d 284, 293.) According to Officer Suviate, he retrieved a black plastic bindle protruding from between the cheeks of appellants buttocks and there was no body cavity intrusion.

Appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J.

WILLHITE, J.

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[1] Appellant stated he was appealing from the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5.

[2] Officer Fernandez made these observations while watching a closed-circuit television in the police station.

[3]People v. Marsden (1970) 2 Cal.3d 118.