P. v. Ly

Filed 5/26/06  P. v. Ly CA2/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977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

            APPEAL from a judgment of the Superior Court of Los Angeles County, Teri Schwartz, Judge.  Affirmed.

            David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela  C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

            Fouc Chuong Ly appeals from the judgment entered following a court trial in which he was convicted of count 1 - possession of a controlled substance (Health & Saf. Code, §  11350, subd. (a)) and count 2 - possession of a smoking device (Health & Saf. Code, §  11364) with findings that he suffered two prior felony convictions (Pen. Code, §  667, subd.  (d)) and a prior felony conviction for which he served a separate prison term (Pen. Code, §  667.5, subd.  (b)), following the denial of a suppression motion (Pen. Code, §  1538.5).  The court sentenced appellant to prison for 32 months.[1]

            In this case, we hold the trial court properly denied appellant's Penal Code section 1538.5 motion to suppress the crack pipe and cocaine found in appellant's vehicle following a traffic stop.  Notwithstanding appellant's arguments to the contrary, a police officer's entry into the vehicle was lawful because (1)  the officer's observation, before entering the vehicle, of the pipe in plain view in the vehicle permitted the officer lawfully to search the vehicle incident to appellant's arrest for possession of the pipe, (2)  the officer lawfully entered the vehicle to retrieve appellant's driver's license after he failed to produce it following the officer's proper demand therefor, and (3)  the officer lawfully, to protect his safety, entered the vehicle to retrieve the license instead of permitting appellant to enter the vehicle.

FACTUAL SUMMARY

            Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6  Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on February  27, 2005, appellant possessed 1.32 grams net weight of a solid substance containing cocaine in base form in Rosemead. 

CONTENTION

            Appellant contends the trial court erroneously denied his motion to suppress the pipe and drugs found in his vehicle.

DISCUSSION

The Trial Court Properly Denied Appellant's Suppression Motion.

            1.  Pertinent Facts.

a.  Suppression Evidence.

                                    1)  People's Evidence.

            Viewed in accordance with the usual rules on appeal (People v. Leyba (1981) 29  Cal.3d 591, 596-597), the evidence established that about 11:45  p.m. on February  27, 2005, Los Angeles County Sheriff's Deputy Steven French and his partner, Los Angeles County Sheriff's Deputy Barragan, were on patrol in Rosemead.  French saw appellant driving a Ford Expedition or Explorer with expired registration.  French conducted a traffic stop of the vehicle. 

            Appellant exited his vehicle and walked back towards the patrol car.  French and Barragan subsequently exited their patrol car and contacted appellant.  French asked appellant for his driver's license.  When French spoke with appellant, the two were between appellant's vehicle and the patrol car.  After French asked appellant for his license, appellant replied that he did not have it on him, and that it was in the vehicle.

            French had appellant go to Barragan, who was standing on the sidewalk.  French went back to appellant's vehicle to retrieve appellant's license.  The prosecutor asked during direct examination of French why he retrieved the license, and French replied, â€