P. v. Mendoza

Filed 9/21/07 P. v. Mendoza CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant appeals from a judgment entered on his plea. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)

After denial of his motion to suppress below, defendant pleaded no contest to possession of cocaine for sale (Health & Saf. Code,  11351), possession of heroin for sale (Health & Saf. Code,  11351), possession of methamphetamine for sale (Health & Saf. Code,  11378), and receiving stolen property (Pen. Code,  496, subd. (a)); he also admitted two prior prison convictions and four prior drug convictions. Defendant was sentenced to 16 years in state prison.

According to evidence adduced at the defendants motion to suppress pursuant to Penal Code section 1538.5, Officer David Berry of the South San Francisco Police Department was patrolling the Travelodge hotel parking lot on July 1, 2005, at approximately 10:30 a.m. when he observed a man later identified as defendant exit room 505 and open the front drivers door of a red Chevrolet Lumina parked directly in front of room 505. When defendant saw the officer, he closed the door of the car and went back into room 505. Officer Berry believed defendant changed his mind about entering the Lumina when he saw the patrol car. Berry checked the registration on the Lumina, which came back to Angel Arias, a 55-year-old male. Since this age was not consistent with that of the individual Berry observed near the Lumina, he obtained information from the hotel clerk regarding who was registered in room 505, and found it to be one Roberto Villanueva. There was a photograph of a drivers license attached to the registration card for room 505, but it was of poor quality. The indicated age of Villanueva was consistent with defendants apparent age, although defendant appeared taller than the drivers license description. Officer Berry believed that Villanueva was the individual he had observed near the Lumina, and ascertained that he had an outstanding warrant for his arrest.

After back-up arrived officers arrived, Officer Berry knocked on the door to room 505, receiving no response. Defendant then appeared at the window, but quickly drew the curtain shut. Berry was able to briefly see defendants face at the window and believed he was Villanueva. Using a key provided by the hotel clerk, Berry tried to enter the room, but it was secured by a chain lock. Berry advised defendant that there was an outstanding warrant for his arrest and told him to open the door. Once a hotel employee released the chain lock, the officers entered the hotel room and observed defendant naked and wet, facing a wall safe; he refused to comply with the officers orders to turn around. Defendant ran to the toilet, sat down, and flushed it. Officer Berry pushed defendant off the toilet and saw several plastic bags in the toilet bowl. Berry removed the plastic bags from the toilet, each of which appeared to be a one-ounce plastic bag of crystal methamphetamine. Officer Berry handcuffed defendant and sat him on the bed. Berry saw packaging materials, a digital scale, plastic bags, and scissors in the bathroom, and plastic wrap, another scale, and a large wad of money in the wall safe. A Tupperware container and another wad of cash were on the bed. Defendant identified himself as Joaquin Banales (he had a temporary identification card in that name); the officers informed him that he was not under arrest, but was being detained.

Officer Berry received defendants consent to search the room to see if there was anything else illegal present. They searched the room and found large amounts of cocaine, heroin, more methamphetamine in the base of the toilet, and $16,201 in cash. Defendant disclaimed any knowledge of the Lumina, and said it was not associated with anyone in the hotel room. Officer Berry looked through the windows of the Lumina and saw a Tupperware container, rubber bands, and plastic bags in plain view; all of these items were similar to items found in the hotel room. He also observed what appeared to be two identification cards lying facedown on the floorboard. Using a key found on the bed, the officers unlocked the Lumina. An officer sat in the drivers seat; and Berry retrieved a plastic bag he saw protruding from under the drivers seat. It appeared to contain heroin. Berry placed the plastic bag back under the seat.

Maximus, a drug-sniffing dog brought to the scene, checked the exterior of the car and indicated an odor of drugs emanating from the area of the door panel. Maximus was then put inside the car and alerted to areas near the passenger door, the dashboard, and under the drivers seat. Those areas and the trunk were then searched, revealing large amounts of cocaine, methamphetamine, heroin, some marijuana, and approximately $30,000 in cash. Defendant told Officer Berry that he came to the hotel room the night before to kick it with his friend Roberto Villanueva, who had rented the room. Villanueva and his girlfriend had left the hotel in defendants car before the officers arrived that morning.

During cross-examination, Officer Berry admitted, when shown photographs of Villanueva and defendant, that they did not resemble each other. He also testified that he did not take the photograph of Villanueva from the desk clerk and compare it to defendant when he saw defendant in the window of room 505. After defendant was placed in a patrol car, Berry found out from the hotel clerk that he was not the person who had rented room 505. Officer Berry admitted that prior to entering the Lumina, he had not observed any contraband in plain view, and that he did not obtain a search warrant before entering the car.

The trial court denied defendants motion to suppress, finding that Officer Berrys mistaken belief that defendant was Villanueva was reasonable, and thus his entry into the hotel room to execute the arrest warrant was legal. The search of the hotel room was legal, pursuant to defendants consent. Even though defendant disclaimed any knowledge of the Lumina, Officer Berrys prior observations of defendant starting to enter the car established a connection between the vehicle and defendant, and his viewing of items similar to those seen in the hotel room (Tupperware of a similar design, similarly colored rubber bands, and a plastic bag protruding from under the drivers seat) supplied probable cause to believe that the vehicle contained contraband.

Defendant was advised of his constitutional rights prior to the entry of his plea and waived those rights; he was also advised of the consequences of his plea. The court found the plea was free and voluntary, and that there was a factual basis for it. No error appears in the entry of defendants plea, or in the sentencing proceedings. The trial court properly denied defendants motion to suppress pursuant to Penal Code section 1538.5.^[1]Defendant was represented by counsel at all times.

There are no meritorious issues to be argued on appeal. The judgment is affirmed.

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Sepulveda, J.

We concur:

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Ruvolo, P. J.

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Rivera, J.

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^[1]The trial courts factual findings when ruling on the motion to suppress are supported by the record. As the court found that Officer Berrys belief that defendant was Villanueva was reasonable, entry into the hotel room was permissible to execute the arrest warrant, and items observed in plain view gave the officers probable cause to arrest defendant. The hotel room could then be searched incident to defendants arrest, in addition to the search being consented to by defendant. (See, e.g., Chimel v. California (1969) 395 U.S. 752.) As defendant was the sole occupant of the room when the police entered, and since he appeared to be staying there (since he was naked and wet upon their entry), the officers reliance upon his consent appeared reasonable. (Illinois v. Rodriguez (1990) 497 U.S. 177.) The search of the car without a search warrant was permissible under the automobile exception, as the officers had probable cause to believe it contained contraband or evidence of a crime. (See, e.g., California v. Carney (1985) 471 U.S. 386.)