Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Shari K. Silver, Judge. Los Angeles County Super. Ct. No. PA059913
California Appellate Project and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
Raymond Rudolph Beauchamp appeals from the judgment entered following his plea of no contest to possession of cocaine (Health & Saf. Code, § 11350) and his admission that he previously had been convicted of a felony within the meaning of the Three Strikes law (Pen. Code, § 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Beauchamp to four years in prison. We remand the matter for correction of clerical error on the abstract of judgment and, in all other respects, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 18, 2008, this court granted Beauchamp’s motion to augment the record on appeal with the police report. The statement of facts has been taken from the report and the transcript of Beauchamp’s motion to suppress evidence.
According to the police report, at approximately 1:10 p.m. on August 29, 2007, Beauchamp was the passenger in a Toyota Camry being driven by a man named Preston. After Preston made an unlawful lane change, Officer Holzer, who was driving a marked patrol car, activated his emergency light to conduct a traffic stop. Preston initially failed to yield to the light and siren and made a right hand turn. However, he then pulled into a parking lot and stopped.
Holzer had Preston get out of the car and stand next to the patrol car. He recognized Preston from a prior contact and knew that Preston was on parole. Holzer then approached the front passenger side of the Toyota and noticed the odor of alcohol emanating from the car. Holzer asked Beauchamp if he was on parole or probation. Beauchamp indicated he was on parole and had been released from jail earlier that day. When asked, Gamboa, who was sitting in the back seat of the Toyota, indicated he was on probation for “drinking and driving.” After Holzer conducted a felony warrant check, which indicated that Gamboa had a “felony [warrant] showing him as a previously deported felon,” the officer asked Beauchamp and Gamboa to get out of the Camry.
Back-up Officers Renforth and Downey arrived at the scene. Downey and Holzer looked into the Toyota and saw in plain view on the front passenger seat a clear plastic zip-lock baggie containing a white powder resembling cocaine. A search of Beauchamp revealed a plastic bag, similar to the one found on the car’s seat, in Beauchamp’s shirt pocket. The plastic had white residue on it and was torn in the center from Beauchamp’s shirt. Beauchamp was arrested for possession of cocaine and transported to the Mission Police Station.
Evidence attributed to Beauchamp included a plastic zip-lock baggie containing a plastic bindle with 0.04 grams of a substance containing cocaine and a plastic zip-lock baggie containing 0.06 grams of a substance containing cocaine base.
2. Procedural History.
In an information filed October 25, 2007, Beauchamp was charged with one count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). It was further alleged that Beauchamp had suffered two prior felony convictions for first degree burglary (Pen. Code, § 459) within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and that he had served four prison terms for prior felony convictions within the meaning of Penal Code section 667.5, subdivision (b).
The People offered Beauchamp a disposition of four years in prison. Under the terms of the agreement, which Beauchamp wished to take advantage of, he was to plead no contest to possession of cocaine and admit one Three Strikes prior. At sentencing, the trial court would impose a two-year term for the possession charge, then double it to four years pursuant to the Three Strikes law. Beauchamp, however, would not be sentenced that day. Instead, the matter would be continued to allow defense counsel to prepare a motion to suppress evidence. As the trial court explained to Beauchamp, “[Y]our attorney is going to file a written motion to suppress the evidence in this case. He will file that, and the D.A. will file something if [he or she] chooses to do so. Then they will submit the motion to suppress on the police report in this case . . . . I will read the police report, and then I will consider the legal arguments by both sides and review the case authority that both sides are relying upon. Then if I grant the motion to suppress, then I will dismiss your case and your plea will not stand. It will be vacated. [¶] If I deny the motion to suppress, then I will sentence you to the four years state prison pursuant to the plea.”
After waiving his right to a jury or court trial, his right to confront and cross-examine the witnesses against him, his right to subpoena witnesses and present a defense and his privilege against self-incrimination, Beauchamp pleaded no contest to possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a). Beauchamp then admitted previously having been convicted of first degree burglary (Pen. Code, § 459) within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
At proceedings held on January 24, 2008, counsel for Beauchamp made a motion to suppress the evidence found as a result of Beauchamp’s detention. Defense counsel first argued that, pursuant to the United States Supreme Court’s decision in Brendlin v. California (2007) __ U.S.__ [127 S.Ct. 2400], the passenger in a car that has been stopped by a law enforcement agent has been detained and is entitled to challenge the propriety of that detention. Then, citing United States v. Drayton (2002) 536 U.S. 194, 201, counsel asserted that, in the present case, when Holzer asked Beauchamp if he was on probation or parole, Beauchamp could not have felt free to simply get out of the car and leave. Thus, defense counsel argued Officer Holzer’s request had the legal force of a demand, which is unlawful under People v. Spicer (1984) 157 Cal.App.3d 213. Referring to the fact that the officer believed he smelled alcohol, counsel stated, “Well, what can an officer do under those circumstances? Well, he could probably . . . investigate to see if there’s any alcohol. But what would the violation be? At best, it’s an open container in a car, because there’s no law that says you can’t be drinking and a passenger. They could have possibly, . . . looked at the driver, see if he was driving under the influence. That never came up.” The officer “doesn’t check the car to look for alcohol. He doesn’t say anything about checking my guy for alcohol. What he does then is go . . . on a fishing expedition and [ask] my client if he’s on probation or parole.” Counsel concluded, “So our point is that because the officer did not follow the correct procedure in regards to what he was allowed to do based upon smelling some alcohol, . . . at that point he violated my client’s rights because he didn’t know he was on parole; he didn’t know he had any search conditions . . . . And so he was going on a fishing expedition. And the law clearly says that that’s not allowed.”
In response, the People indicated that, unlike the Brendlin case, “where there was basically a stop of a driver for no reason, in this case [there had been] a lawful stop. There were two traffic infractions . . . indicated in the police report. So the stop was lawful. [¶] The bottom line is, are the officer’s actions in this case reasonable? . . . First of all, . . . we don’t even need reasons to have passengers – in this case, the defendant – ordered out of the car on a traffic stop. The law is very clear on that. Drivers as well as passengers can be ordered out, or ordered in, for officer safety reasons. And so we don’t even need the reasons stated by counsel. The officers can have all passengers exit the vehicle. [¶] In this case, as the court indicated, when the defendant exits the car, the officer sees the cocaine in plain view . . . . And subsequently[,] we have probable cause to search the defendant . . . . [¶] [And] [s]o the officer’s actions in this case are perfectly reasonable and lawful . . . .”
After indicating that it had “listened to the arguments of both counsel [and] ha[d] read [Beauchamp’s counsel’s] moving papers, and the police report[,]” the trial court denied the motion to suppress “[f]or the reasons previously stated and the reasons indicated by the People.” The trial court agreed, however, to issue a certificate of probable cause.
The trial court sentenced Beauchamp to the mid-term of two years in state prison for his conviction of possession of cocaine (Heath & Saf. Code, § 11350, subd. (a)) doubled to four years pursuant to the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Beauchamp was awarded presentence custody credit for 149 days actually served and 74 days of good time/work time, for a total of 223 days.
Beauchamp was ordered to pay an $800 restitution fine (Pen. Code, § 1202.4, subd. (b)), a stayed $800 probation revocation restitution fine (Pen. Code, § 1202.45) a $50 lab analysis fee (Health & Saf. Code, § 11372.5), and a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)).
On the People’s motion, the trial court dismissed all remaining counts and allegations.
Beauchamp filed a timely notice of appeal on March 5, 2008.
This court appointed counsel to represent Beauchamp on appeal on April 30, 2008.
CONTENTIONS
After examining the record, counsel for Beauchamp filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed August 28, 2008, the clerk of this court advised Beauchamp to submit within 30 days any contentions, grounds of appeal, or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and discovered an error on the abstract of judgment. The abstract shows a restitution fine of $400 imposed pursuant to Penal Code section 1202.4, subdivision (b) and a suspended parole revocation restitution fine of $400 imposed pursuant to Penal Code section 1202.45. The reporter’s transcript indicates fines of $800, rather than $400, were imposed as to each statute. “It is . . . important that courts correct errors and omissions in abstracts of judgment. An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we direct the trial court to correct the abstract of judgment to properly reflect the fines imposed.
DISPOSITION
The judgment is affirmed. The trial court is ordered to correct the abstract of judgment to reflect imposition of a fine of $800 pursuant to Penal Code section 1202.4, subdivision (b) and a suspended fine of $800 pursuant to Penal Code section 1202.45. A corrected, certified copy of the abstract of judgment is to be forwarded to the Department of Corrections.
We concur: KLEIN, P. J., CROSKEY, J.