P. v. Osti

Filed 10/12/06 P. v. Osti CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco, Judge. Affirmed.

Julie Sullwold Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Lilia E. Garcia, Supervising Deputy Attorney General.

Defendant Anthony Osti pled guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378) after a trial court denied his motion to suppress evidence under Penal Code section 1538.5. Defendant’s sole contention on appeal is that the trial court erred in denying his motion to suppress. For the reasons set forth below, we shall affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On December 11, 2004, Deputy Jimmy Trahin of the San Bernardino County Sheriff’s Department responded to a call at an apartment complex in Needles. While on that call, the deputy noticed a pickup truck with no license plates parked in the complex. The deputy ran a record check on the truck’s vehicle identification number. The report came back that the truck was not stolen, and that it was registered in Colorado.

As Deputy Trahin stood by the truck, Zabrina Longacre approached; she stated that the truck belonged to her boyfriend, defendant, and that defendant resided in apartment 29. The deputy wondered whether the truck had been stolen because defendant’s name was not on the registration and the license plates had been removed. He went to the door of defendant’s apartment.

Deputy Trahin knocked on the partially open door. In response, Kathryn Davis, defendant’s mother, said, “Come in.” The deputy stepped into the entryway and saw Davis on the living room couch next to the front door. The deputy asked Davis who owned the pickup truck and Davis told him it was her son, defendant. Davis then stated that defendant was in his bedroom and pointed down the hallway to the bedrooms. At this point, defendant walked out from the bedroom into the living room. When asked about the truck, defendant told the deputy that he had purchased it from a friend. Defendant, however, could not remember the name of the friend from whom he purchased the truck. Defendant stated that he had a bill of sale in his bedroom. Defendant then turned and walked down the hallway to his bedroom with the deputy following him to see the bill of sale.

As they were walking to defendant’s bedroom, Deputy Trahin recognized defendant from prior contacts. The deputy contacted the police dispatcher to check defendant’s parole status. When defendant and the deputy reached the bedroom, defendant entered and the deputy stood at the open bedroom doorway waiting to see the bill of sale to the truck. The deputy waited at the doorway because defendant had not indicated that the deputy could enter the bedroom. At this point, the police dispatcher confirmed that defendant was on parole.

At the same time, from the open doorway, Deputy Trahin noticed magazine pages that had been cut into three-by-three squares, with some of squares folded in half to form drug bindles. Defendant also pointed out a marijuana pipe on top of the TV to the deputy. Next to the bindle cutouts, the deputy saw a large plastic baggie containing over a hundred unused smaller baggies, which was another way to package drugs. The deputy then saw two packages inside another large baggie; the baggie contained two grams of crystalline substance the deputy believed to be methamphetamine. Defendant told Deputy Trahin that he was selling methamphetamine out of his home to support his habit. The detective then entered the bedroom and picked up the methamphetamine. Defendant then told him, “Don’t arrest me, Trahin.”

At the hearing on the motion to suppress, defendant and his mother, Davis, testified on defendant’s behalf. Defendant testified that he was asleep in his bedroom when awakened at about 11:15 p.m. by loud knocking on the apartment front door. When he walked into the living room, he recognized Deputy Trahin, whom defendant knew from a prior contact. According to defendant, the deputy told defendant that the deputy was there to conduct a parole search. The deputy then conducted a body search of defendant. At this point, the deputy asked questions regarding defendant’s truck. Next, Deputy Trahin conducted a search of defendant’s bedroom. During this time, the deputy was joined by another deputy. Because defendant believed that he was still on parole, he did not object to the parole search.

Davis, defendant’s mother, testified that defendant lived with her in her apartment. Davis stated that she was asleep on the couch in the living room at about 11:30 p.m. when she was awakened by a loud pounding on her front door. Davis yelled out, asking who was pounding on the door. In response, two officers opened the door and one entered the apartment. Defendant was also awakened by the knocking and walked into the living room. An unidentified deputy told Davis and defendant that he was there to conduct a parole search of defendant. The deputy also mentioned the truck. Davis, however, could not remember what he said. According to Davis, the other deputy also entered the apartment. The two officers then took defendant to his bedroom, searched it, and “tore the bedroom up” in the process.

DISCUSSION

A. The Trial Court Properly Denied Defendant’s Motion to Suppress

Defendant contends that the trial court erred in denying his motion to suppress evidence seized by the police. Specifically, defendant contends that Deputy Trahin did not have valid consent to enter his mother’s apartment or his bedroom. Defendant also argues that, even assuming the deputy had permission to enter the apartment, he did not have permission to proceed past the apartment entryway and enter defendant’s bedroom.

1. Background

During in limine proceedings, defendant moved to suppress the drug and packaging evidence found in his bedroom and defendant’s statement that he was selling methamphetamine out of his home to support his habit. During the hearing on the motion, the prosecutor argued that defendant had consented to the search which led to the seizure of the contested physical and testimonial evidence. The prosecutor argued in the alternative that the deputy acted in good faith when conducting the search pursuant to the parole search condition which was later determined to have expired. At the conclusion of the suppression motion hearing and after hearing oral argument, the trial court denied defendant’s motion without giving a statement of factual findings. When defense counsel asked whether the motion was being denied based on a finding of consent or valid parole search, the court simply stated that the “Basis is in the record.”

2. Standard of Review

“Our standard of review on appeal from the denial of a motion to suppress is well established. We defer to the trial court’s factual findings where supported by substantial evidence, but we must exercise our independent judgment to determine whether, on the facts found, the search and seizure was reasonable under the Fourth Amendment standards of reasonableness. [Citation.]” (People v. Avila (1997) 58 Cal.App.4th 1069, 1073-1074; accord People v. Memro (1995) 11 Cal.4th 786, 846; People v. Loewen (1983) 35 Cal.3d 117, 123.)

3. Analysis

In this case, as discussed in detail above, Deputy Trahin testified that he knocked on the apartment door to inquire about the truck, not to search for drugs or other illegal contraband. The deputy asked defendant about the ownership of the truck after defendant’s mother gave the deputy permission to enter the apartment. The deputy followed defendant to the bedroom after defendant told the deputy he had a bill of sale in his bedroom and went to retrieve it. There, in plain view from the open doorway, the deputy saw a considerable quantity of methamphetamine and contraband-packaging material. When defendant realized that Deputy Trahin saw the drugs and drug-selling apparatus, defendant voluntarily told the deputy that he was selling drugs to support his own habit. From this, we find there is substantial evidence to support the court’s implicit finding that the deputy had consent to enter defendant’s apartment.

Nevertheless, defendant relies on his and his mother’s testimony, that the deputy entered his apartment without consent, and asks us to disregard the deputy’s testimony. However, “[w]here . . . there is a conflict in the evidence, it is the duty of the reviewing court to determine if there is substantial evidence in the record to uphold the finding of the trial court, and the trial court’s ruling will not be disturbed on appeal unless it is palpably erroneous. [Citations.]” (People v. Duren (1973) 9 Cal.3d 218, 238.) Here, the trial court implicitly rejected the testimony of defendant and his mother, Davis; instead, the court relied on the deputy’s testimony regarding consent to enter the apartment. As an appellate court, we defer to the trial court’s findings of fact, express or implied, if they are reasonably justified by the evidence and the circumstances of the case. (People v. Quesada (1991) 230 Cal.App.3d 525, 533.) Therefore, we hold that there is substantial evidence to support the trial court’s implicit finding that Davis gave Deputy Trahin permission to enter the apartment.

Defendant alternately argues that even if Davis consented to Deputy Trahin’s entry, the deputy “exceeded the scope of that consent by proceeding past the entryway of the apartment.” Again, we disagree. Here, as discussed above, defendant informed Deputy Trahin that he had a bill of sale in his bedroom for the truck which he allegedly purchased from a friend whose name he could not recall. After telling the deputy this information, defendant immediately turned and started toward his bedroom, followed by the deputy, with the implication that defendant was going to retrieve the bill of sale to show to the deputy - giving the deputy implied consent to follow defendant to see the bill of sale. (See People v. Frye (1998) 18 Cal.4th 894, 990.) The deputy did follow defendant to the bedroom and stood by the bedroom doorway; the deputy did not enter the bedroom. From the open doorway, the deputy observed the items in question in plain view.

Defendant, in his reply brief, argues that the People cannot argue “a consent/plain view theory” for the first time on appeal. Defendant’s argument is misguided. Here, the issue is whether the officer had consent to enter the apartment and then follow defendant down the hallway to his bedroom. Once the officer had the consent to follow defendant to his bedroom, no one disputes that the drugs and drug-related paraphernalia, which were in plain view, could be seized and used against defendant.

Based on the above, substantial evidence supports the trial court’s implied factual finding that the deputy had consent to follow defendant to his bedroom from where the deputy saw the contraband and its packaging material in plain view and heard defendant’s voluntary admission. Accordingly, we find that the trial court properly denied defendant’s motion to suppress the methamphetamine and its packaging material, as well as defendant’s spontaneous and voluntary admission that he was dealing drugs out of the apartment.^[1]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RICHLI

Acting P. J.

/s/ GAUT

J.

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^[1] Because we have determined that Deputy Trahin had consent to enter the apartment and follow defendant to his bedroom, we need not determine whether the search was a valid parole search.