P. v. Hooper

Filed 1/10/07  P. v. Hooper 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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.  Barry Hammer, Judge.  (Retired judge of the San Luis Obispo Super. Ct. assigned by the Chief Justice pursuant to art. VI, § of the Cal. Const.)  Affirmed.

                      Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

                      Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey Koch, Deputy Senior Assistant Attorney General, and Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, for Plaintiff and Respondent.

                      Defendant and appellant Keith Carl Hooper (defendant) pleaded guilty to possessing cocaine base for sale in violation of Health and Safety Code section 11351.5.  Defendant's sole issue on appeal is that the trial court erred in denying his motion to suppress evidence under Penal Code^[1]  section 1538.5.  For the reasons set forth below, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY^[2]

                      A.                Factual Background

                      On August 18, 2005, San Bernardino Police Officers Block and Affrunti were in the area of 11th Street and Lugo Avenue.  Because of recent homicides and narcotics activity in the area, the officers were conducting a gang sweep in a fenced-in carport area.  Based on prior sweeps in the area, Officer Block knew that suspects tended to loiter in this area and run when approached by officers.

                      When the officers arrived at the fenced-in carport area, Officer Block climbed the fence.  As he approached from around a corner, he saw defendant in the carport area about four to five feet from a vehicle.  Within two to three seconds, defendant quickly turned away.  Based on his experience, Officer Block thought defendant was going to run.  Officer Block pointed his gun at defendant, and told defendant to stop and put his hands in the air.  Defendant complied and laid on the ground as ordered by Officer Block.

                      Officer Block believed it was common for street-level narcotics sellers to carry weapons on their person.  Based on his experience in arresting suspects in the area for narcotics offenses, possession of cocaine for sale, possession of drug paraphernalia and possession of cocaine, the recent homicides (three in a 30 to 60 day period of time), and defendant's actions, Officer Block believed defendant may have been involved in narcotics sales and was going to run.  As a result, Officer Block handcuffed defendant and asked him if he was on parole or probation.  Defendant stated that he was on parole.  Officer Block searched defendant; the officer found rocks of cocaine in one of defendant's pant pockets. 

                      After finding the cocaine and while defendant was seated in a nearby chair, Officer Block asked defendant if the car in the carport belonged to defendant.  Defendant answered that it was,^[3]  and gave the officers consent to search the car.  Inside the car, Officer Affrunti found a loaded firearm. 

                      B.                Procedural Background

                      On October 26, 2005, the San Bernardino District Attorney filed an information charging defendant with possession for sale of cocaine base in violation of Health and Safety Code section 11351.5 (count 1); and possession of a firearm by a felon in violation

of section 12021, subdivision (a)(1) (count 2).  The information further alleged that defendant was convicted of robbery in 1989 in violation of section 211, a serious or violent felony, within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i).  Additionally, the information alleged that defendant has suffered three felony convictions and served three separate prison terms, within the meaning of section 667.5, subdivision (b).  Defendant pleaded not guilty and denied the priors. 

                      On November 29, 2005, defendant filed a motion to suppress evidence under section 1538.5.  At the hearing on the motion on December 20, 2005, the trial court denied defendant's motion to suppress.

                      On March 30, 2006, defendant pleaded no contest to possession of cocaine base for sale.  Pursuant to the plea agreement the trial court (1) imposed the upper term of five years, and (2) dismissed count 2 of the information and the allegations of priors under section 1385. 

                      On appeal, defendant challenges the trial court's denial of his motion to suppress.

DISCUSSION

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

                      Defendant contends that Officers Block and Affrunti did not have reasonable suspicion to justify detaining defendant.  Defendant argues that because the detention was illegal, evidence seized during the ensuing parole search of defendant and consensual search of defendant's car should have been suppressed. 

                                              1.                Standard of Review

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