Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed. Los Angeles County Super. Ct. No. NA071441
KITCHING, J.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
James Newman (Newman) appeals from the judgment entered following his plea of no contest to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and his admission that he had previously suffered a prior felony conviction within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Newman to 32 months in prison. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the transcripts of the preliminary hearing and the motion to suppress evidence.
At approximately 9:14 p.m. on August 25, 2006, Long Beach Police Officer Gabriel Garrido (Garrido) and his partner, Officer Alfonso Navarro (Navarro), were on patrol in a marked police car near the intersection of 4th Street and Cedar Avenue in Long Beach. Garrido, who was driving at a speed of less than 20 miles per hour, observed Newman “with a bicycle violation[;]” he “was riding a bicycle without a bike light during a time of darkness” in violation of Vehicle Code section 21201, subdivision (d). After stopping Newman, Garrido inspected the bicycle and did not see any kind of light. Newman did not point out to the officer “a light that . . . may or may not have been operational[.]”
Navarro testified that, after the officers observed Newman, Garrido slowed down to between five and seven miles per hour.
As the two officers were detaining Newman, Navarro told Garrido that, when he was approximately seven feet from Newman, Navarro looked out the passenger’s side window of the patrol car and saw Newman take his right hand off the handlebar and drop something onto the sidewalk next to a parked car. Garrido immediately searched the area and discovered a small plastic bag containing .40 grams of a substance containing rock cocaine. No one else was in the area at the time and Garrido did not find any other “similar-looking objects.”
As they were transporting Newman to the station, the officers dropped off the bicycle at Newman’s residence so that it would not “have to be placed in prisoner property.” While he was booking Newman, Garrido discovered in Newman’s possession some “small baggies.” Newman told Garrido that he worked with jewelry and that he used the baggies for “packaging [the] jewelry.”
Newman testified that at approximately 9:30 p.m. on August 25, 2006, he was riding his bicycle on the sidewalk, heading east down 4th Street between Cedar and Pacific. As he crossed Cedar, Newman saw a police car shining its light on another man in the area who was riding a bicycle. The officers slowed down and the cyclist continued on. The officers then pulled up next to Newman and “screamed” at him, telling him to stop. Newman turned around, rode past two parked cars and stopped by the patrol car.
The driver of the patrol car got out and informed Newman that he did not have a headlight on his bicycle. When Newman told the officer that he did, indeed, have a headlight, the officer said, “ ‘Well, I don’t see a headlight.’ ” Newman then attempted to explain to the officers that his headlight was “old” and did not require batteries. Newman stated, “It just flips – the spindle of it flips up against the tire, and when the tires rub, it lights up. So when you stop, the light is not on.” The officer responded, “ ‘It’s not on so that means it’s not working.’ ”
The arresting officer then told his partner to “go see . . . if he [Newman] dropped anything.” Although Newman denied having dropped anything on the street or sidewalk, the officer walked up the street and returned with a small baggie. Newman claimed he had never seen the baggie before and that it did not belong to him. The officer responded by telling Newman, “ ‘Well, this is yours.’ ” After determining that Newman was on parole, the officers took him into custody and transported him to the station. On the way, the officers dropped off Newman’s bicycle at the “sober living house” where he had been staying.
At the station, the officers searched Newman. From inside his wallet, the officers removed several baggies. Newman stated the baggies were in his wallet in the sleeve in which he kept his business cards. Newman indicated he is an artist and he used the baggies to hold pieces of chalk and graphite for making drawings. Newman did not tell the officers that he used the baggies to hold jewelry. Newman was not under the influence of alcohol or drugs. Newman claimed he had “been clean” since he was last released from prison.
2. Procedural History.
On August 29, 2006, Newman was charged by felony complaint with one count of possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). It was further alleged Newman had suffered two prior serious or violent felony convictions pursuant to the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served prison terms for 11 prior felony convictions within the meaning of Penal Code section 667.5, subdivision (b).
On December 4, 2006, Newman made a motion for discovery pursuant to Pitches v. Superior Court (1974) 11 Cal.3d 531. Newman sought to discover any documents in the personnel records of Officer Alfonso Navarro regarding complaints pertaining to the officer’s “dishonesty, and/or [the] planting [of] evidence, and/or [the] falsifying [of] police reports.” On January 3, 2007, after reviewing the appropriate files, the trial court determined no documents satisfied Newman’s request.
On January 11, 2007, Newman filed a motion to suppress evidence pursuant to Penal Code section 1538.5. A hearing was held on the motion on January 17, 2007. Newman called as a witness Anthony Henson, who had been arrested by Officers Navarro and Garrido prior to their contact with Newman. Henson had been sitting in the back seat of the patrol car when Newman was detained. Newman believed that, consistent with an investigative report prepared by the public defender department, Henson would testify that he had been arrested pursuant to a warrant. On the way to the police station, Henson saw “a guy riding a bicycle and a guy walking in the opposite direction. There were no lights on the bicycle. The police shined their light on the two men. The male walking dropped a small plastic bag as the police shined the light on them. The male on the bicycle kept riding. [¶] . . . [¶] The officer picked up the plastic bag that the male walking in the area dropped. [¶] They arrested the man on the bike. [Henson] recalled the man from the bicycle insisting what they found was not his. The male kept saying, ‘That’s wrong[,] that’s wrong.’ ” (Italics added.)
On the advice of his counsel, Henson refused to testify and exerted his Fifth Amendment privilege against self-incrimination. After consulting with counsel, the trial court found Henson had “a credible claim of the Fifth Amendment, that testifying would subject him to incriminating himself as to conduct, state of mind that could lead to criminal matters and possible imposition of a 25-year-to-life sentence.” The trial court concluded Henson was “unavailable as a witness” and excused him.
Counsel for Newman informed the trial court that he would like to call as a witness the investigator who took Henson's statement. When the trial court asked if there was a hearsay exception which would apply to Henson's statements, as given to the investigator, counsel indicated he “was not able to find a hearsay exception in the Evidence Code” but believed the court should allow the statements in the “interest of justice.” When the trial court refused to allow the investigator to testify regarding the statements made to him by Denson, defense counsel called Newman as a witness.
After Newman testified, the trial court denied the motion to suppress evidence stating, “The officers’ testimony, which is clear and credible, . . . establishes that . . . Mr. Newman was observed dropping that baggie with rock cocaine, it was recovered, there was probable cause for his arrest. The items [other baggies] were discovered pursuant to that arrest during a booking-type search.”
After his motion to suppress evidence was denied, Newman indicated he would accept the prosecution’s offer of a negotiated plea under the terms of which he would plead no contest to possession of cocaine and admit one prior Three Strikes felony conviction in exchange for a sentence of 32 months in state prison. After waiving his right to a jury or court trial, his right to confront and cross-examine the witnesses against him, his right to present a defense and his privilege against self-incrimination, Newman entered his plea of no contest and admitted the prior conviction. At the same proceedings, the trial court sentenced Newman to 32 months in prison. Newman was given pre-sentence custody credit for 222 days, consisting of 148 days actually served and 74 days of good time/work time.
On January 17, 2007, Newman filed a request for a certificate of probable cause. He asserted the denial of his motion to suppress evidence “was a violation of [his] due process rights. Further[,] the denial of [his] motion in the interests of justice to allow hearsay evidence of a prior statement made by [his] witness Anthony Denson was a violation of due process.” On January 24, 2007, the trial court granted Newman’s request.
Newman filed a timely notice of appeal on January 24, 2007. The notice indicates the appeal is based on “the denial of a motion to suppress evidence under Penal Code section 1538.5.”
This court appointed counsel to represent Newman on appeal on April 18, 2007.
CONTENTIONS
After examination of the record, Newman’s appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice dated September 6, 2007, the clerk of this court advised Newman to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. In a letter filed on September 27, 2007, Newman asserts he was denied due process of law and the effective assistance of counsel.
DISCUSSION
1. Newman was not denied due process of law.
Newman appears to be asserting he was denied due process of law (1) because his case was not prosecuted in a timely manner (he urges he “waived time” on only one occasion) and (2) because, although the probation report recommended he be allowed to participate in a Proposition 36 program, the trial court sentenced him to prison.
Initially, our review of the record indicates Newman’s case proceeded in a timely manner. He was not denied due process in this regard.
Neither was Newman denied due process of law when, instead of placing him in a Proposition 36 program, the trial court sentenced him to prison. Although the probation report indicates Newman is “eligible” for Proposition 36 treatment, the “Evaluation” portion of the report indicates Newman “is a violent criminal with a prior record that spans over 30 years. [Newman] has 22 potential prior felony convictions. At this time he is neither eligible nor suitable for probation.” Moreover, Newman entered into a negotiated plea agreement under the terms of which he pleaded no contest to possession of cocaine and admitted one prior Three Strikes conviction in exchange for a prison term of 32 months. By sentencing Newman to prison, the trial court was simply executing the terms of the plea bargain. (See People v. Shelton (2006) 37 Cal.4th 759, 767 [“A negotiated plea agreement is a form of contract . . . .”].) Imposition of the agreed upon sentence did not deny Newman due process of law.
2. Newman’s counsel was not ineffective.
Newman contends his counsel was ineffective for seeking to suppress only the baggies found in Newman’s wallet and not the cocaine recovered by Officer Garrido from the sidewalk, for failing to object when the prosecutor “coached” Officer Navarro during his testimony regarding where he saw Newman drop the baggie containing cocaine, and for failing to object when the trial court allowed a representative from the probation department to “stand over” Denson and advise him to exercise his Fifth Amendment privilege against self-incrimination rather than testify on Newman’s behalf.
“In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]” (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674].) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)
Apart from whether counsel should have sought to suppress the baggie containing cocaine, Newman cannot show prejudice. The evidence established Officers Navarro and Garrido legitimately stopped Newman for a traffic violation; he was riding a bicycle at night without an operating headlight in violation of Vehicle Code section 21201, subdivision (d). (See People v. Glaser (1995) 11 Cal.4th 354, 362 [In reviewing a trial court’s ruling on a motion to suppress evidence, an appellate court must “defer to the trial court’s factual findings, express or implied, where supported by substantial evidence.”].) When Navarro then saw Newman drop the baggie onto the sidewalk, the officers were entitled to retrieve it. “[T]he circumstances confronting the officers clearly gave rise to an objectively reasonable suspicion on their part that something out of the ordinary had taken place involving criminal activity other than the [Vehicle Code] violation[].” (People v. Podesto (1976) 62 Cal.App.3d 708, 717.) The officers could reasonably infer from Newman’s conduct in dropping the baggie that he was attempting to dispose of contraband. Under these circumstances, had counsel moved to suppress evidence of the baggie containing cocaine, we can confidently conclude the trial court would have denied such a motion.
With regard to Newman’s assertion the prosecutor “coached” Officer Navarro during his testimony regarding where he saw Newman drop the baggie containing cocaine, a review of the record fails to reveal any such “coaching” occurred. The transcript of the proceedings indicates the prosecutor asked Navarro if, during the time he observed Newman, he saw Newman “do anything that was particularly noteworthy to [the officer] at any point [he] described.” After Navarro answered, “Yes,” the following occurred: “[The prosecutor:] What’s that? [¶] [Navarro:] We are always trained to watch people’s hands. I remember looking at his hands, and in his right hand he had something that he dropped. I could see a reflection of something white and small. I saw it fall to the sidewalk.”
Finally, nothing in the record supports Newman’s assertion the trial court allowed a representative from the probation department to “stand over” Denson and advise him to exercise his Fifth Amendment privilege against self-incrimination rather than testify on Newman’s behalf. Denson, who apparently faced criminal charges and a 25-year-to-life Three Strikes sentence, was advised by counsel to invoke his Fifth Amendment privilege against self-incrimination rather than testify at Newman’s hearing on his motion to suppress evidence. The trial court, after consulting with Denson’s counsel, found that Denson “had a credible claim [to] the Fifth Amendment [and] that testifying would subject him to [criminal liability] . . . .” No representative from the probation department “st[oo]d over” Denson or advised him as he testified.
APPELLATE REVIEW
We have examined the entire record and are satisfied that Newman’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., ALDRICH, J