Opinion
B294504
02-19-2020
THE PEOPLE, Plaintiff and Respondent, v. HILTON MINCY, Defendant and Appellant.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA465747) APPEAL from a judgment of the Superior Court of Los Angeles County, Richard S. Kemalyn and Terry A. Bork, Judges. Affirmed. Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Hilton Mincy appeals from the judgment entered following his plea of no contest to four felony drug-possession offenses. No arguable issues were identified by Mincy's appointed appellate counsel after her review of the record. We also have identified no arguable issues after our own independent review of the record and analysis of the contentions presented by Mincy in a handwritten supplemental brief. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
After a traffic stop in the early morning of February 17, 2018, officers discovered illegal drugs in Mincy's car. Mincy was arrested and charged by information in separate counts with possession of cocaine for sale, possession of hydrocodone for sale and possession of oxycodone for sale. (Health & Saf. Code, § 11351.) Mincy was also charged with one count of possession of Xanax for sale. (Health & Saf. Code, § 11375, subd. (b)(1).) The information specially alleged Mincy had suffered one prior serious or violent felony conviction (attempted murder in Pennsylvania) within the meaning of the three strikes law. (Pen. Code, §§ 667, subds. (b)-(j); 1170.12.) Represented by appointed counsel, Mincy pleaded not guilty to the charges and denied the special allegation.
1. Mincy's Faretta Requests,
One week after his arraignment Mincey waived his constitutional right to counsel, and the trial court granted his request to represent himself. (See Faretta v. California (1975) 422 U.S. 806 (Faretta).) Nearly one month later Mincy appeared at a pretrial conference with retained counsel, and the court granted Mincy's request to withdraw his Faretta waiver. Two days later Mincy fired his retained counsel and filed another motion to represent himself. The court again granted Mincy's request to proceed in propria persona. Mincy continued to represent himself until the plea hearing.
2. Mincy's Motion To Suppress Evidence
On July 18, 2018 Mincy moved to suppress all drug evidence discovered during the February 17, 2018 traffic stop. According to the evidence presented at the two-day hearing on Mincy's motion, Los Angeles Police Officer Nicholas Garcia and his partner, Officer Donovan Anderson, were on routine patrol in Hollywood shortly before 1:00 a.m. on February 17, 2018 when they noticed a car with unlawfully tinted windows and an expired registration near the intersection of Sunset Boulevard and Wilcox Avenue. The officers initiated a traffic stop, which was recorded on the officers' body cameras. Mincy was the driver and sole occupant of the car.
The recordings were admitted into evidence during the suppression hearing and are part of the record on appeal.
The officers approached car and spoke to Mincy. He denied being on probation or parole. Officer Anderson returned to the patrol car and ran a search for Mincy's driver's license information on a mobile data computer (MDC). A report came back indicating Mincy was on parole for an unknown offense. Approximately six minutes after the traffic stop, Mincy acknowledged he was on parole for attempted homicide in Pennsylvania and said his parole had been transferred to California. By this time Anderson had moved Mincy from his car to the sidewalk and placed him in handcuffs for officer safety. During a pat search Anderson found what he described as a large amount of money in Mincy's front pants pocket.
Mincy did not seek to suppress the cash, which, according to testimony at the preliminary hearing, amounted to $1,382.02.
Officer Garcia believed the MDC report was both unusual and unclear because it indicated Mincy's parole offense was unknown and his parole term did not expire until 2038. To verify Mincy's parole status and to ascertain the nature of his search conditions, Garcia telephoned the parole office. He was placed on hold. While on hold Garcia asked Mincy if he would consent to a search of his car. Mincy assured the officers there was nothing in the car, but would not give them permission to search the vehicle. Garcia responded that the parole office was going to allow the search, but he "just wanted to verify"; he added "it would go a lot quicker" if Mincy consented. Garcia explained he was "the fourth person in line," but "that was fine." Officer Anderson added, "So we're going to be here for a while."
Approximately 22 minutes after the traffic stop, Mincy consented to the search of his car. Officer Anderson began searching Mincy's car, but stopped when Officer Garcia signaled he had reached the parole office. Approximately three minutes later, Garcia was informed that Mincy was on parole, subject to "full search and seizure conditions" and known to carry guns and large quantities of narcotics. Anderson resumed his search of the car and was joined by Garcia after Mincy was placed in the patrol car.
Approximately 40 minutes after the traffic stop was initiated, the officers found a small plastic bag under the driver's floor mat that appeared to contain cocaine. Mincy was arrested, and his car was impounded. During a subsequent search of the trunk, officers found a safe containing prescription bottles of Adderall, oxycodone, alprazolam and hydrocodone and numerous small plastic bags with white powder suspected to be cocaine.
Mincy testified that he stood handcuffed on the sidewalk and spoke with Officer Anderson while Officer Garcia was attempting to reach the parole office by telephone. After waiting a long time, he finally consented to the search of his car because, as he told the officers, he needed to use the bathroom. Mincy also added he needed to get home and change clothes and "people were waiting on me." Following his testimony, Mincy argued the search "was just very unnecessary" and conducted because he was on parole and in retaliation for having filed a complaint for racial profiling by the police.
At the suppression hearing Mincy did not challenge the officers' conduct in ordering him out of the car, placing him in handcuffs and conducting a pat search. Nor did Mincy claim his consent to search the car was involuntary or coerced.
In an eight-page ruling the trial court denied Mincy's motion to suppress, crediting the officers' testimony regarding the sequence of events, as corroborated by the body camera recordings.
3. Mincy's Pitchess Motion
Mincy moved to discover all the personnel records of the arresting officers relating to fabricated police reports. (Evid. Code, §§ 1043, 1045; Pitchess v. Superior Court (1974) 11 Cal.3d 531.) The trial court granted the motion as to Officer Anderson, limited to complaints regarding false reports and perjury. Following an in camera review, the court found no discoverable information.
4. Mincy's Other Preplea Motions and Writ Petitions
While representing himself, Mincy made a series of motions, including a motion to set aside the information (Pen. Code, § 995), a motion alleging ineffective assistance of counsel at the preliminary hearing, a motion to compel discovery of the police body camera recordings of his traffic stop, an amended discovery request for documentation concerning the police body camera recordings, two motions to dismiss based on the prosecution's failure to timely produce the body camera recordings (citing Brady v. Maryland (1963) 373 U.S. 83), a motion to strike the prior strike conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)), two motions for sanctions against the Los Angeles Police Department for failing to respond to his subpoena duces tecum, a motion for sanctions against the district attorney's office, and a motion for appointment of a mental health expert.
The trial court denied as premature Mincy's Romero motion and denied without prejudice his motion for appointment of a mental health expert. The court granted the prosecution's motion to quash Mincy's subpoena duces tecum and denied his other motions relating to subpoenas because Mincy had failed to attempt to enforce them through an order to show cause and they sought irrelevant information. Mincy's remaining motions were either denied or withdrawn by Mincy at the time of his plea.
Mincy also filed several writ petitions in this court: a petition for a writ of mandate asserting there were defects in the preliminary hearing caused by defense counsel, the prosecutor and the magistrate; a petition for a writ of prohibition alleging he was being unlawfully confined based on falsified evidence; and a second petition for writ of prohibition contending the trial court had denied Mincy his first amendment rights by not allowing him to be fully heard on his motions. The petitions were summarily denied or withdrawn by Mincy at the time of his plea.
5. The Plea Hearing
At a hearing on September 18, 2018 Mincy relinquished the right to represent himself, and the trial court appointed counsel to represent him. Mincy then pleaded no contest to all charges pursuant to a negotiated agreement providing he would be sentenced to a four-year county jail term. The court granted Mincy's previously filed Romero motion and dismissed the allegation concerning Mincy's prior strike conviction.
Before entering his plea Mincy was advised of his constitutional rights and the nature and consequences of the plea, which he stated he understood. Mincy's counsel joined in the waivers of his constitutional rights. The trial court expressly found Mincy's waivers and plea were voluntary, knowing and intelligent.
6. The Sentencing Hearing
On November 5, 2018 the trial court sentenced Mincy, who continued to be represented by appointed counsel, to three concurrent four-year terms and one concurrent three-year term in county jail and imposed statutory fines, fees and assessments. Mincy was awarded 524 days of custody credits.
Mincy filed a timely notice of appeal in propria persona. He did not seek a certificate of probable cause.
DISCUSSION
We appointed counsel to represent Mincy in his appeal. After reviewing the record, counsel filed a brief raising no issues. On October 16, 2019 we gave Mincy notice he had 30 days to submit a brief or letter raising any grounds of appeal, contentions or arguments he wanted this court to consider.
On November 18, 2019 we received a 14-page handwritten supplemental brief in which Mincy argues his appointed counsel at the preliminary hearing and the plea hearing provided ineffective assistance. He also contends the trial court erred in denying his suppression motion and his various motions concerning the body camera recordings, misconduct by the prosecutor, and purported lies and false reports by the police officers. Lastly, Mincy maintains there was a failure to timely comply with his various requests for reporter's transcripts during the proceedings in the trial court.
Mincy does not contend he was not provided with a full record on appeal.
"[W]hen a defendant pleads guilty or no contest and is convicted without a trial, only limited issues are cognizable on appeal. A guilty plea admits every element of the charged offense and constitutes a conviction [citations], and consequently issues that concern the determination of guilt or innocence are not cognizable. [Citations.] Instead, appellate review is limited to issues that concern the 'jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea.'" (In re Chavez (2003) 30 Cal.4th 643, 649.) As ordered by this court in this case, when a defendant pleads guilty or no contest and fails to obtain a certificate of probable cause, the appeal "is limited to those issues that to do not require a certificate of probable cause"—search and seizure issues and postplea issues concerning the degree of the crime or sentencing. (See Pen. Code, § 1237.5; People v. Palmer (2013) 58 Cal.4th 110, 114.)
1. The Trial Court Properly Denied Mincy's Motion To Suppress
Mincy argues the search of his car was "harassing, arbitrary or capricious" and the trial court's denial of his suppression motion was "biased."
In reviewing the ruling on a motion to suppress, the appellate court defers to the trial court's factual findings, express or implied, when supported by substantial evidence. (People v. Suff (2014) 58 Cal.4th 1013, 1053; People v. Redd (2010) 48 Cal.4th 691, 719; People v. Ayala (2000) 23 Cal.4th 225, 255.) In determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Suff, at p. 1053; People v. Zamudio (2008) 43 Cal.4th 327, 342.) Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art. I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562; In re Lance W. (1985) 37 Cal.3d 873, 885-890.)
"'"As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." [Citation.] If there is a legitimate reason for the stop, the subjective motivation of the officers is irrelevant.' [Citations.] '[T]he law contemplates that the officer may temporarily detain the offender at the scene for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop.'" (People v. Tully (2012) 54 Cal.4th 952, 980.) Officers are permitted to ask about matters unrelated to the traffic stop so long as the questioning does not unduly prolong the stop. (See id. at p. 981; People v. McGaughran (1979) 25 Cal.3d 577, 584.)
Based on the testimony at the suppression hearing, credited by the trial court, the officers had a right to initiate a traffic stop of Mincy's car for observed Vehicle Code violations and to make ordinary inquiries incident to that stop, including verifying Mincy's driver's license information. (See Rodriguez v. United States (2015) 575 U.S. 348, 354-355.) Alerted by Mincy and the MDC report that Mincy was on parole, the officers properly detained him for a reasonable period to confirm his parole status, including the conditions of parole. While Officer Garcia was attempting to speak to someone in the parole office, Mincy consented to the search, 22 minutes after the stop. The search conditions were verified three minutes later, and the officers promptly completed the search. (See United States v. Sharpe (1985) 470 U.S. 675, 687-688 [20-minute delay reasonable].) Under the circumstances the officers' actions unrelated to the initial stop did not measurably, unreasonably or unduly prolong Mincy's detention. (See Arizona v. Johnson (2009) 555 U.S. 323, 333.) The suppression motion was properly denied.
2. Mincy's Ineffective Assistance of Counsel Claims Are Not Cognizable on Appeal
Mincy contends his appointed counsel provided constitutionally ineffective assistance at the preliminary hearing. Specifically, he claims counsel was ineffective because he failed to request a continuance to obtain Officer Anderson's body camera recording, to cross-examine and impeach the officer, to call Mincy to testify or to present evidence in his defense. Because all these matters pertain to Mincy's guilt or innocence, he is effectively seeking to contest the validity of his plea, which is prohibited in the absence of a certificate of probable cause. (See In re Chavez, supra, 30 Cal.4th at p. 649; People v. Richardson (2007) 156 Cal.App.4th 574, 596.)
Mincy additionally argues his appointed counsel at the plea and sentencing hearings was constitutionally ineffective for failing to seek a certificate of probable cause. We agree with those courts that have determined such a claim is not cognizable on appeal because defendants could otherwise routinely assert ineffective assistance of counsel to circumvent the requirements of Penal Code section 1237.5. (See People v. Manriquez (1993) 18 Cal.App.4th 1167, 1170-1171; People v. Breckenridge (1992) 5 Cal.App.4th 1096, 1100-1101, disapproved on another ground in In re Chavez, supra, 30 Cal.4th at p. 657, fn. 6; People v. Zamora (1991) 230 Cal.App.3d 1627, 1633-1634.)
Mincy's counsel at sentencing asked to be relieved and advised the court, "I have advised him of his rights to appeal, and if he wants to file an appeal that's up to him." Mincy prepared and filed his own notice of appeal and concurrently filed a "motion to proceed pro per for appeal." --------
With respect to other potential sentencing or postplea issues that do not in substance challenge the validity of the plea itself, we have examined the record and are satisfied Mincy's appellate attorney has fully complied with the responsibilities of counsel and no arguable issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.