Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR091266
Banke, J.
Following defendant Kenneth Steele’s entry of a plea of guilty to one misdemeanor count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), he was granted deferred entry of judgment pursuant to Penal Code section 1000 and ordered to complete a drug education program. His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the judgment.
Background
At about 8:00 p.m. on February 23, 2009, Police Officer Chris Ortega, with the Humboldt County Drug Task Force, responded to a call of a potential altercation at a local McDonald’s restaurant. Appellant Kenneth Steele had reported that a Mr. Townsend was trying to start a fight with him. Townsend had been drinking and appeared to be under the influence, but not sufficiently so to be arrested for being drunk in public. Townsend pointed out Steele’s red Camero, and Ortega told him to stay away from Steele.
Later that evening, Ortega saw the Camero parked along the side of a roadway with its tires jutting into the roadway in violation of the Vehicle Code. Ortega also saw Townsend kneeling by the driver’s side door. Ortega activated his emergency lights, pulled in behind the Camero, exited and walked over to Townsend, who had staggered to his feet and stepped further into the roadway. Ortega arrested Townsend for public intoxication. In the meantime, several other officers arrived at the scene.
Ortega then approached the passenger’s side of the Camero, finding Steele in the driver’s seat and Randall Boatsman in the passenger seat. Ortega asked for identification and returned to his patrol car to run a warrant check. Boatsman was subject to an active warrant and was also on probation with a search clause.
Ortega directed Boatsman to get out of the Camero and placed him in the back of his patrol car. Ortega then directed Steele to exit the Camero in anticipation of searching all areas of the car within Boatsman’s control. Steele became agitated and began yelling, “ ‘You’re not gonna search my car.’ ” Steele was animated, nervous and jittery, and he had acted very aggressively toward Ortega in the past, when Ortega served an arrest warrant on his son. Ortega placed Steele in handcuffs and patsearched him. During the search, Ortega felt a hard, rectangular object in Steel’s right rear pocket. Believing it might be a knife, Ortega removed it and discovered it was a metal spoon with white powdery residue on it. Based on his training and experience, Ortega believed the spoon had been used to ingest methamphetamine. Steele was placed under arrest for possession of narcotics paraphernalia. The other officers had commenced searching the passenger area of the Camero. After Ortega announced he had found the spoon on Steele’s person, the officers found what appeared to be a controlled substance in the locked glove compartment, which they opened with a key on the key ring.
On March 6, 2009, the Humboldt County District Attorney filed a complaint charging Steele with transporting methamphetamine in violation of Health and Safety Code section 11379, subdivision (a), and misdemeanor possession of a smoking device in violation of Health and Safety Code section 11364. Steele waived time for a preliminary hearing, and on May 7, 2009, filed a motion to suppress. A preliminary hearing was held on May 15, 2009, and defendant was held to answer on both charges. The court did not hear Steele’s motion to suppress at that time. The district attorney filed an information in two counts on May 22, 2009.
On June 23, 2009, Steele filed a new motion to suppress. On December 9, 2009, Steele made a Marsden motion, which was heard and denied on December 18, 2009. His motion to suppress was heard and taken under submission on January 19, 2010, and trial was maintained for January 25, 2010.
People v. Marsden (1970) 2 Cal.3d 118.
On January 25, 2010, Steele entered a change of plea (before Judge Neville), pleading guilty to an amended count 1 of misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). The remaining count was dismissed. Steele was granted deferred entry of judgment pursuant to Penal Code section 1000, and was ordered to complete a drug education program.
On January 26, 2010, the court (Judge Reinholtsen) issued a written order denying Steele’s motion to suppress.
Steele filed a notice of appeal on February 5, 2010, and an amended notice of appeal on February 9, 2010, expressly challenging the denial of his motion to suppress under Penal Code section 1538.5, subdivision (m), and California Rules of Court, rule 8.304(b)(4)(A).
Discussion
As a general rule, Penal Code section 1237.5 precludes an appeal from a judgment of conviction after a plea of guilty unless the defendant has applied to the trial court for a certificate of probable cause for such an appeal and the trial court has executed and filed such a document. However, appellate courts have tolerated an appeal if the issue is the validity of a search and seizure, for which appeal is proper under Penal Code section 1538.5, subdivision (m) or goes to proceedings subsequent to the plea for purposes of determining the degree of the crime or the penalty imposed. (People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.)
Here, Steele did not request or obtain a certificate of probable cause, so he is not able to challenge the validity of the plea or any other matter that preceded the entry of his plea. (People v. Cole (2001) 88 Cal.App.4th 850, 868.) He also cannot, in this case, challenge the denial of his motion to suppress because he pled guilty before the trial court ruled on his motion. In short, once Steele entered a change of plea before the judge who was going to try the case, the judge who had heard the motion to suppress and had taken it under submission no longer had jurisdiction to rule on the motion. And even if that were not the case, our review of the transcript of the hearing on the motion and the court’s written order denying it, demonstrates the motion was properly denied. Because Steele’s passenger was on probation and subject to warrantless search, the officers could lawfully search all areas of the Camero within the passenger’s access and control. For occupant and officer safety reasons, particularly given that it was night and the Camero was illegally parked within the roadway, Steele was lawfully directed to exit the vehicle pending the anticipated probation search of the passenger’s area. Given Steele’s unstable and verbally aggressive behavior and the officer’s prior experience with Steele wherein he was both verbally and physically aggressive, the officer had a reasonable basis to detain Steele during the anticipated search and to patsearch him. The patsearch did not exceed permissible bounds, but yielded the spoon with residue, resulting in probable cause to permit search of the entire car.
Steele was represented by competent counsel throughout the case, and there are no post-plea sentencing issues.
Disposition
After a full review of the record, we find no arguable issues and, therefore, affirm the judgment.
We concur: Margulies, Acting P. J. Dondero, J.