Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles County Nos. TA106719 & TA108607 Ronald K. Syers, Judge Ricardo R. Ocampo
Dennis L Cava, under appointment by the Court of Appeal,
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Roderick Cargile appeals his conviction by plea in case number TA108607 to felon in possession of a firearm with a prior conviction (Pen. Code, § 12021, subd. (a)(1)) and a gang enhancement (§ 186.22, subd. (b)(1)(A)). Pursuant to his negotiated plea, appellant was granted probation with credit for time served. Appellant claims the trial court erred in denying his motion to suppress evidence in a prior case (Case No. TA106719) which was dismissed due to witness unavailability. (§ 1385.) We affirm the judgment.
All statutory references are to the Penal Code.
Facts and Procedural History
On the evening of May 22, 2009, Officers Jacinto and Christian Rueda were on foot patrol working gang enforcement detail at the Nickerson Garden Housing Development. It was a high crime gang area.
As the officers rounded a corner, they saw appellant about 15 feet away, walking towards them under a street light. Officer Rueda shined his flashlight on appellant.
Appellant looked at the officers with a panicked expression, made a quick movement with his left hand, and put what appeared to be a handgun in his front left pocket. The gun barrel was pointed down into the pocket, but the gun grip and a shiny portion of the handgun was exposed.
Officer Rueda detained appellant, patted him down for weapons, and found a.22 caliber semiautomatic handgun in appellant's front left pocket. The handgun had a live round in the chamber and six rounds in the magazine.
First Case: Case No. TA106719
Appellant was charged in case number TA106719 with felon in possession of a firearm (§ 12021, subd. (a)(1)) and unlawful possession of ammunition (§ 12316, subd. (b)(1)), with a gang enhancement (§ 186.22, subd. (b)(1)(a)) and two prison prior enhancements (§ 667.5, subd. (b)).
After the trial court denied appellant's motion to suppress evidence (§ 1538.5), the prosecutor dismissed the case because Officer Jacinto was on military duty and not available for trial. (§ 1382; 1385.)
Second Case: Case No. TA108607
The prosecution refiled the charges on October 23, 2009, in case number TA108607. Appellant filed a motion to suppress evidence, acknowledged that the maximum possible sentence was nine years, and entered into a negotiated plea for probation with credit for time served.
Discussion
Appellant appeals the denial of his suppression motion in the first case based on the theory that his plea in the second case was part of the same proceeding. Section 1538.5, subdivision (m) provides that a defendant may seek review of an order denying a suppression motion provided, "at some state of the proceedings prior to conviction, " the defendant moves to suppress the evidence.
The first case, however, was dismissed. It "wipe[d] the slate clean, " as if the case had never been filed. (People v. Barro (2001) 93 Cal.App.4th 62, 67.) " 'If the case has been dismissed pursuant to Section 1385, or if the people dismiss the case on their own motion after the special hearing [i.e., after a suppression hearing], the people may file a new complaint or seek an indictment after the special hearing, and the ruling at the special hearing shall not be binding in any subsequent proceeding....' (§ 1538.5, subd. (j), italics added.) The term 'special hearing' is mentioned in subdivision (i) of section 1538.5 and refers to a hearing in superior court to determine the validity of a suppression motion prior to trial." (People v. Glenn (1997) 56 Cal.App.4th 886, 889.)
After the charges were refiled in case number TA108607, appellant filed a new motion to suppress evidence. Rather than proceed with the motion, appellant entered into a negotiated plea. Although appellant did obtain a certificate of probable cause, it did not resurrect his right to appeal the ruling on the suppression motion in the first case. (See e.g., People v. Hoffman (2001) 88 Cal.App.4th 1, 3 [suppression motion must be renewed before trial court to preserve issue for appeal].) "Obtaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty. [Citation.]" (People v. Kaanehe (1977) 19 Cal.3d 1, 9; see also People v. DeVaughn (1977) 18 Cal.3d 889, 896 [section 1237.5 does not operate to expand grounds upon which appeal may be taken].)
Assuming, arguendo, the guilty plea was based on some tacit agreement to preserve appellant's right to appeal the search issue, the appeal is groundless. Appellant claims that Officer Rueda's testimony was "inherently improbable, " but that was a matter for the trial court to decide. (See e.g., People v. Culver (1973) 10 Cal.3d 542, 548.) On review, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence, and determine whether on the facts so found the search or seizure was reasonable. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Crediting Officer Rueda's testimony, the trial court found that the officer saw the handgun and it was "a plain sight situation....[¶] So the 1538.5 [motion] is denied." It did not err. The evidence clearly shows that Officer Rueda saw appellant with a handgun and had probable cause to detain appellant and conduct a patdown search for weapons. (Terry v. Ohio (1968) 392 U.S. 1, 22 [20 L.Ed.2d 889, 906-907]; People v. Dickey (1994) 21 Cal.App.4th 952, 955.) The gun grip was hanging out the pocket for all to see. "The mere looking at that which is open to view is not a search" or a Fourth Amendment violation. (People v. Mejia (1969) 272 Cal.App.2d 486, 490.)
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.