Opinion
B231946
08-17-2011
THE PEOPLE, Plaintiff and Respondent, v. RANDY THOMAS, Defendant and Appellant.
Richard L. Fitzer, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NA087646)
APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Randy Thomas appeals from the judgment entered following his plea of no contest to five counts of second degree robbery (Pen. Code, § 211). The trial court sentenced Thomas to four years in state prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the transcript of the preliminary hearing.
At approximately 6:00 p.m. on December 19, 2010, Brad Aune was walking down a "neighborhood" street in the City of Lakewood in the County of Los Angeles. Thomas pulled his car up next to Aune, got out and asked Aune what the time was. Aune pulled out his cellular telephone, told Thomas the time, then put the phone back in his pocket. As Aune started to walk away, Thomas told him to "start swinging." Aune "didn't say anything and . . . didn't do anything." Thomas told Aune to put his hands in his pockets and to give him anything he had. When Aune told Thomas that he had no money, but that he had a phone, Thomas put his hands in all of Aune's pockets and, when he felt the phone, pulled it out and took it.
After he had taken Aune's phone, Thomas told him to "keep walking straight." Thomas was going to pull up a couple of houses in his car and honk. When Aune heard the honk, he was to turn around. If he looked back before Thomas honked, Thomas would "come up and stab" him. Aune walked up the street to a friend's house and, from there, telephoned the police.
At approximately 3:45 p.m. on December 16, 2010, Napoleon Gutierrez and his girlfriend, Vanessa Valdovinos, were in the Forest Park area of the City of Long Beach. Thomas walked up to the couple and told Gutierrez that he looked familiar. Gutierrez told Thomas that he didn't know him and that he had never seen him before. "[Thomas] started asking [Gutierrez] if [he] had any homies, where they were from and . . . where [he, Gutierrez,] was from." Gutierrez stated that he "didn't gang bang" and that he didn't have "any homeboys that are gang members."
Thomas told Gutierrez that "niggers are hungry out here so I'm asking for all your money." Gutierrez, who was frightened by Thomas, believed that Thomas meant he was going to rob him. Gutierrez took a step back, looked at Thomas and stated, " 'I don't have any money on me, but you can go ahead and pocket check me.' " Instead, Thomas put his hands in his own pockets, where Gutierrez thought he kept a gun or knife. Gutierrez's girlfriend, who was standing next to him, began to shake. She, too, was afraid of Thomas.
Thomas checked Gutierrez's pockets and backpack for money. In Gutierrez's backpack, Thomas found his cell phone. He took the phone then told Gutierrez to ask his girlfriend, Valdovinos, for money. Valdovinos at first said that she did not have any, then nudged Gutierrez and said, " 'I have that two dollar bill that you gave me.' " Gutierrez, who was "scared to get hit or something," told Valdovinos to " '[g]ive it to [Thomas].' "
Thomas began to walk away from Gutierrez and Valdovinos. He told them to walk slowly in the same direction and that he would pull up in a car and give Gutierrez his phone back. When Gutierrez told Thomas that, because the only thing he had asked for was money, he should "just give [him] [his] phone" back, Thomas told Gutierrez that he shouldn't "be telling [him] what to do or [he, Gutierrez, was] going to get beat up." Thomas "ended up taking off with [the cell phone]."
At approximately 6:50 in the evening on December 22, 2010, missionary Benjamin Johnson, who is also known as Elder Johnson, was in the City of Long Beach with his companion and fellow missionary, Brett Hoffman. The two men were returning from an appointment and had just unlocked their bicycles from a street sign when they were approached by Thomas. Thomas started asking the two men questions. He wanted to know who they were and what they were doing. When they told Thomas that they were missionaries, he asked them, "What's God going to do for me tonight? How am I going to eat[?]" When Thomas kept asking questions, the two men decided to give him some gift cards they had to McDonald's and Taco Bell. They took the cards out of their bags and handed them to Thomas. Thomas then asked the two men if they had anything else. In particular, he wanted to know if they had any money and he "actually put his hands into [their] pockets [to make] sure that [they] didn't have anything else on [them]."
Thomas asked the men to take off their backpacks. At this point Johnson was frightened and he concluded "that [they] were being robbed at the time[.] [He] didn't want to start any contention so [he] just complied and did what [he] could." Thomas asked what was in the backpacks. He never went through them "but he inquired about them and [Johnson and Hoffman] . . . told him [they had] some scriptures and books [inside.]" Thomas responded: "[Y]ou know, is there anything else? Do you have anything else? Don't be messing with me because no one needs to be stabbed tonight."
After Thomas took the backpacks, he continued to ask Johnson and Hoffman if they had anything else. Johnson stated that he had a dollar and he took out his wallet and pulled out a dollar. Thomas grabbed both the dollar and the wallet, picked up the backpacks and, after telling Johnson and Hoffman to walk the other way, started walking south. Thomas had told the two men that he was going to his car, where he was going to "go through the stuff" and that everything he did not want he was going to give back. However, Thomas never returned any of either man's property.
Hoffman identified Thomas as the man who approached him on the evening of December 22, 2010. Hoffman testified that, "[Thomas] approached [him], asked [him] questions, told [him] to look away and not look at his face, told [him] that he would stab [him] if [he] didn't comply with [his orders,] . . . took [his] backpack, went through [his] pockets, took [his] phone, and then told [him] to walk away and not to call the police." Hoffman indicated that he was afraid of Thomas because he "was being threatened." Hoffman "felt that [he] was in danger."
At approximately 6:30 p.m. on December 28, 2010, Long Beach Police Officer Andrew Fox was on duty in the Houghton Park area of Long Beach. While on patrol, Fox saw Thomas in a Toyota van. The van's sliding side door was open and, on the floorboard, Fox saw a dollar bill, folded lengthwise with marijuana in the crease. An additional search of the van carried out later by Fox and other officers revealed three cell phones, a television, a playstation, some DVD's and a knife.
Long Beach Police Officer Andrew Calderon was also on duty at approximately 6:30 p.m. on December 28, 2010. Calderon was conducting a narcotics investigation and he observed Thomas repeatedly get in and out of a vehicle that was parked adjacent to a skate park. He would "talk to people, hang out, [then] go back to the van" and drink "from what appeared to be an open alcoholic beverage." While he was sitting in the passenger seat of the van, Thomas was approached by two men, one of whom appeared to conduct a "hand-to-hand" narcotics transaction through the open window. Calderon radioed other officers in the area who approached the van.
Long Beach Police Officer Douglas Luther assisted in apprehending Thomas. Just before he made contact with Thomas, Luther had been speaking to Officer Calderon regarding narcotic activity in a park. As Calderon and Officer Luther were having a conversation, there appeared a "male subject standing outside of [Thomas's] vehicle right next to his vehicle." Thomas was seated inside the van. A "blade" was on the dashboard. The knife had an approximately six-inch blade and a wooden handle.
"Being that [Luther] saw the knife [and he] didn't want [Thomas] to grab for it[,] . . . [Luther] contacted [Thomas] immediately and pulled him out of the car." The van smelled like an alcoholic beverage called "four locos." Luther pulled Thomas away from his van and toward a police car so that the officers could continue their investigation. Thomas said that "he was really nervous and that he had warrants." With regard to the van, Thomas indicated that it was his home. He "lived in the van."
After Thomas waived his Miranda rights and gave his permission for them to search the van, other officers found a small amount of marijuana inside. Thomas admitted taking a cell phone, some cash, gift cards, and a wallet. He claimed to have put all of the things he had taken from the missionaries in his mother's garage and, after obtaining permission to search the building, officers went there with Thomas, who pointed out "the box which contained all of the [stolen items]."
Miranda v. Arizona (1966) 384 U.S. 436.
Thomas was placed under arrest. As a result of the search of the van, "[t]he property that belonged to victim Johnson[, the property that belonged to] victim Hoffman" and "the red cell phone that belonged to . . . Gutierrez . . . [was] return[ed] to [them]."
2. Procedural history.
Following the preliminary hearing, the trial court held Thomas to answer for five counts of robbery in violation of section 211. On January 28, 2011, an information was filed in which count 1 alleged the second degree robbery of Napoleon Gutierrez; count 2 alleged the second degree robbery of Vanessa Valdovinos; count 3 alleged the second degree robbery of Benjamin Johnson; count 4 alleged the second degree robbery of Brett Hoffman; and count 5 alleged the second degree robbery of Brad Aune.
On February 3, 2011, Thomas filed a section 1538.5 motion to suppress the evidence found in his van. Thomas argued that, "when law enforcement officers conduct a warrantless search, the prosecution has the burden of justifying the search under a recognized exception to the constitutional warrant requirement." Here, "the inventory search was unlawful because it was not shown that the police reasonably impounded the truck pursuant to a community caretaking function. Instead the inventory search was conducted as a warrantless criminal investigation without probabl[e] cause and [was] therefore illegal."
The prosecutor asserted that "[w]hat happened here is we had officers doing surveillance at a park known for narcotics activity. [Officer] Calderon saw what appeared to be a hand-to-hand transaction. He saw the defendant actually getting out of the van, appearing to engage . . . in drug activity. [¶] After that, he notified other officers who then went to the van and in plain view . . . saw . . . marijuana, . . . [an] open container [and a] knife. Clearly those items [were] in plain view. [¶] . . . [A]ll that is required at the time of observation when we're dealing with plain view is that law enforcement [are] in [a] place [where] they [have] a right to be . . . and . . . the items' nature [is] immediately apparent as incriminating evidence. That's clearly what we have here in this particular situation. [¶] The probable cause to actually go to the vehicle in the first place would be that the marijuana . . . was in plain view . . . ."
The trial court determined that the search of Thomas's van was not an inventory search. However, the court noted that the officers could see the marijuana. It "was in a dollar bill or 5-dollar bill or 20-dollar bill." Accordingly, the officers had probable cause to search the van and the trial court determined it should deny the motion to suppress evidence.
After the trial court denied the motion to suppress, defense counsel indicated that Thomas would be willing to enter a plea "as long as [the trial court would] issue a certificate of probable cause." The trial court indicated that, "[o]n these issues [it didn't] have a problem with that."
The trial court noted that an offer of four years had been made on January 28, 2011 and that Thomas needed to make up his mind as to whether he wished to take it. The court continued, "If he wants to come back later this morning or this afternoon that's fine. I will put it over . . . but [after that] it's going to be for trial and then my offer is absolutely off the table. [¶] He needs to make up his mind what he wants to do."
After discussion with his counsel, Thomas decided to take the trial court's offer of four years in state prison. The prosecutor then summarized the charges as follows: "It's been alleged against you in information number NA 087646 . . . that you are guilty of five separate counts of robbery, all violations of . . . section 211. [¶] Count 1 it's alleged that you committed this act on December 16th, 2010. [¶] Count 2 it's alleged that you committed this crime on December 16th, 2010. [¶] Count 3 alleges that you committed this crime on December 22nd, 2010. [¶] Count 4 also alleges that you committed this crime on December 22nd, 2010. [¶] And count 5 alleges that you committed this crime on or about December 19th, 2010." The prosecutor continued, "Is it your understanding that you're going to be pleading . . . no contest to counts 1, 2, 3, 4 and 5 and that you will be sentenced to [¶] . . . [¶] . . . [f]our years in state prison[?]" Thomas responded, "Yes, Ma'am."
After waiving his right to a jury or court trial, his right to remain silent, his right to subpoena witnesses and present a defense and his right to cross-examine the witnesses against him, Thomas pled no contest to each of the five alleged robberies. The trial court then found that Thomas had "expressly, knowingly, understandingly and intelligently waived his constitutional rights[;]" that Thomas's "pleas [were] freely and voluntarily made with an understanding of the nature and consequences thereof and that there [was] a factual basis for the pleas" based on a reading of the transcript of the preliminary hearing. The court then "accept[ed] [Thomas's] pleas of no contest."
At proceedings held on March 24, 2011, defense counsel indicated that Thomas wished to withdraw his plea. The trial court responded: "That's not going to happen. [¶] I'll sentence him and he can file a motion. [¶] Other than that, does [Thomas] waive formal arraignment for judgment and sentence?" Defense counsel answered, "Yes."
As to count 1, the trial court "ordered [Thomas] committed to the Department of Corrections for [the low] period of two years . . . . [¶] As to counts 2 and 3, [the trial court imposed] one [consecutive] year [as to each count], that's one third the mid term consecutive [for each count] for a total commitment of four years. [¶] As to counts 4 and 5, [the trial court sentenced Thomas to the mid term of] three years as to each count[,] . . . [those] sentence[s to] run concurrent."
After indicating that it would recommend fire camp, the trial court noted that Thomas was entitled to 87 plus 13, or 100 days of presentence custody credits.
Thomas was ordered to pay a restitution fine of $200 per year (§ 1202.4, subd. (b)), a stayed $800 parole revocation restitution fine (§ 1202.45), a $40 criminal conviction fee (Gov. Code, § 70373), and a $30 court security assessment (§ 1465.8, subd. (a)(1)).
Thomas filed a notice of appeal and a certificate of probable cause on March 24, 2011.
This court appointed counsel to represent Thomas on appeal on May 20, 2011.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed June 6, 2011, the clerk of this court advised Thomas to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On June 23, 2011, Thomas filed a supplemental brief in which he asserted that the trial court should have granted his motion to suppress evidence. Thomas argues that it appears that "all [a] deputy had to have was a reasonable suspicion of marijuana being in [the] van, . . . [before] he [could] . . . lie[,] . . . say he suspected something" and search the vehicle. Thomas's assertion is without merit. A police officer is a presumably reliable person. (People v. Schulle (1975) 51 Cal.App.3d 809, 813.) Accordingly, when an officer attests to the truth of a matter and acts upon it, the burden of demonstrating the falsity of the statements falls upon the defendant. (Ibid.) Here, Thomas has failed to show that the officers were lying when, among other things, they consistently stated that there had been marijuana on the floorboard in the back of the van.
Thomas contends that when police officers initially searched his van, they were looking for drugs. When they didn't find drugs, they "commenced a new investigation without having probable cause or suspicion" and began to look for stolen property. According to Thomas, "this is where the real illegal search comes into play." He asserts, "They weren't looking for, and had no reason to look for, stolen property so why did they take these things from [his] van? Any evidence from this search should have been thrown out. They didn't have a search warrant to go through those phones and they didn't know the phones weren't [Thomas's.]" The officers "never had probable cause so they made up a few lies to try and justify why they illegally searched [the] van." Once again, Thomas's contention is without merit.
Here, officers legitimately observed what they believed was marijuana on the floor board of the back of Thomas's van. Under the circumstances, the officers were justified in searching the remainder of the rear of the van. The fact that they found stolen goods rather than narcotics is of no import. It is manifest that "when there is probable cause to believe that an automobile stopped on a highway contains contraband, evidence of a crime, or was itself an instrumentality of the commission of one, law enforcement officers need not obtain a warrant before conducting a search . . . ." (People v. Laursen (1972) 8 Cal. 3d 192, 201.)
People v. Lindsey (1986) 182 Cal.App.3d 772 is also relevant. There, the court determined that the VIN plate in plain view, as well as the information obtained from a reliable informant, "furnished probable cause to believe the BMW was stolen. This belief made the search for the secondary identification numbers permissible under the Fourth Amendment." (Id. at p. 777.) In the present case, officers observed marijuana in the back of Thomas's van. The marijuana, in plain view, furnished probable cause to believe there was more contraband in the van.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J. We concur:
KLEIN, P. J.
ALDRICH, J.