Opinion
H050839
02-22-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA LUCANO BALTAZAR, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 22CR03443)
WILSON, J.
Following the denial of defendant Joshua Lucano Baltazar's motion to suppress evidence seized after an allegedly unlawful warrantless search, Baltazar pleaded no contest to a felony count of carrying a loaded firearm in a vehicle while not the registered owner (Pen. Code, § 25850, subd. (c)(6)). Appointed counsel for Baltazar filed an opening brief which provides the procedural and factual background of the case but raises no legal challenge to the disposition. Counsel asks this court to conduct an independent review of the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Baltazar was advised of the right to file written arguments on his own behalf but has not responded. Finding no arguable error that would result in a disposition more favorable to Baltazar, we affirm the judgment.
Unspecified statutory references are to the Penal Code.
I. Factual and Procedural Background
As Baltazar pleaded no contest, we derive the facts from the evidence presented at the preliminary hearing at which the magistrate also heard his motion to suppress evidence.
On August 19, 2022, the Santa Cruz County District Attorney filed a complaint charging Baltazar with one felony count of carrying a loaded firearm while not the registered owner (§ 25850, subd. (c)(6), count 1), one misdemeanor count of possessing a firearm with its identification numbers removed (§ 23920, count 2), and one misdemeanor count of possession of a controlled substance (Health &Saf. Code, § 11375, subd. (b)(2), count 3). Prior to the preliminary examination, Baltazar filed a motion to suppress pursuant to section 1538.5 on the grounds that the evidence was obtained as a result of an unlawful warrantless search.
At the combined preliminary examination and motion to suppress hearing, Santa Cruz police officer Justin Lamoly testified he was on patrol in the City of Santa Cruz on the morning of August 7, 2022, when he observed a white Honda Accord parked on Ocean Street blocking a driveway. Lamoly parked his patrol car behind the Accord and walked up to the driver's side window which was partially rolled down. He tried to talk to the driver, later identified as Baltazar, but Baltazar "had a very distant demeanor and appeared to be continuously nodding off." Lamoly, who was in uniform, identified himself as a police officer, but Baltazar "continued to ignore [his] instructions." Lamoly suspected that Baltazar was under the influence of some kind of depressant, but Baltazar would not respond when Lamoly asked what he had taken.
At first, Lamoly contacted Baltazar because he was blocking a driveway in violation of a Vehicle Code section, but upon observing Baltazar's behavior, Lamoly determined it would not be safe for Baltazar to operate his vehicle. Lamoly asked Baltazar to exit his vehicle, but he initially did not comply. When Lamoly asked a second time, Baltazar "attempted" to get out.
Lamoly did not believe that Baltazar intended to be uncooperative, but instead that he was "too out of it to really have knowledge of what was [] going on." As Lamoly spoke to him, Baltazar would "look[] up . . . and then [] close his eyes again and lower his head." After Lamoly rubbed Baltazar's sternum with his knuckles to keep him awake, Baltazar "was able to [] articulate himself . . . better and provided his name and date of birth."
After Baltazar got out of the car, Lamoly told him he would search him for weapons, and Baltazar consented. Lamoly put Baltazar's arms behind his back and patted him down.
During the search, Lamoly patted the outside of a pouch which he described as "kind of like a fanny pack" that was "draped across the left side" of Baltazar's body right above his waistband. Lamoly felt something inside that had the "shape and density of a firearm." Lamoly handcuffed Baltazar and walked him toward his patrol car where he conducted a search incident to arrest. Inside the pouch, Lamoly found a loaded 9-millimeter handgun. Lamoly observed that the serial numbers on the firearm had been filed off.
Lamoly believed there might be additional weapons inside Baltazar's car, so he and another officer searched the vehicle. The other officer found two loose pills near the center console that Lamoly believed were Xanax.
When he was interviewed at the police station, Baltazar admitted the pills were Xanax but claimed they had been left in his car by a friend.
At the police station, Baltazar acknowledged and waived his Miranda rights, and told Lamoly that he found the handgun underneath a dumpster at his apartment complex about four months prior. He kept the weapon rather than turn it over to police for "personal protection" from Norteno gang members who sometimes "start problems" in his neighborhood. Baltazar said he attended a party with some friends the night before his arrest, staying out all night, and brought the firearm with him because he was not certain who would be at the party.
Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda).
A five-minute excerpt of Lamoly's body camera footage from his encounter with Baltazar was played for the magistrate and was entered into evidence (Exh. 3), along with two photographs taken by Lamoly at the scene. One of the photographs (Exh. 1) was of the pouch that contained the firearm, and the second (Exh. 2) was of the firearm itself, sitting atop the pouch.
None of these exhibits were initially provided to this court as part of the record on appeal. By separate order dated October 18, 2023, we ordered the record augmented to include these exhibits. On November 27, 2023, having not yet received the exhibits, we vacated submission of the matter pending their receipt. We were subsequently advised that the file containing the exhibits was no longer retrievable, so we returned the matter to the trial court for the limited purpose of settling the record as to the exhibits and transmitting copies to this court. (Cal. Rules of Court, rules 8.224(d), 8.340(c).) The parties were unable to reconstruct the five-minute excerpt of the body camera footage, but instead provided this court with the unabridged video of the encounter, search, and post-arrest interview, along with the two photographic exhibits. As part of our review of the record, we have viewed the video, which is just over 1 hour and 11 minutes long, in its entirety.
The magistrate denied Baltazar's motion to suppress and held him to answer on all counts. Baltazar subsequently pleaded no contest to count 1, felony possession of a firearm while not the registered owner, in exchange for dismissal of counts 2 and 3. In accordance with the plea agreement, the trial court suspended imposition of sentence and placed Baltazar on formal probation for 24 months, with a term of 180 days in county jail, "with custody alternative authorized." The court awarded custody credit of one day and imposed a $300 probation revocation fine (§ 1202.44), stayed pending successful completion of probation. The trial court also imposed, but then suspended, a $300 restitution fund fine (§ 1202.4), a $40 court operations fee (§ 1465.8, subd. (a)(1)), and a $30 court facility fee (Gov. Code, § 70373).
Baltazar timely appealed.
II. Discussion
Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record. We find no arguable error that would result in a disposition more favorable to Baltazar.
III. Disposition
The judgment is affirmed.
WE CONCUR: GREENWOOD, P. J., ADAMS, J. [*]
[*] Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6 of the California Constitution.