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People v. Devote

California Court of Appeals, Second District, Sixth Division
Apr 20, 2009
2d Crim B211693 (Cal. Ct. App. Apr. 20, 2009)

Opinion

NOT TO BE PUBLISHED

Superior Court County of Los Angeles County No. BA339080 Norm Shapiro, Judge

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


GILBERT, P.J.

Peter C. Devote appeals a judgment of conviction entered after he pleaded nolo contendere to possession of cocaine for sale. (Health & Saf. Code, § 11351.) We appointed counsel to represent him in this appeal. After counsel's examination of the record, he filed an opening brief raising no issues. (People v. Wende (1979) 25 Cal.3d 436, 441.) On February 27, 2009, we advised Devote that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. We received a response from him contending that the trial court erred by denying his motion to suppress evidence because his detention and the subsequent parole search of his residence was unlawful. (Pen. Code, § 1538.5.) Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 123-124, we present a factual and procedural summary of the case, and a brief discussion of Devote's contentions.

FACTS AND PROCEDURAL HISTORY

The prosecutor charged Devote by information with possession of cocaine base for sale, possession of marijuana for sale, and unlawful possession of ammunition. (Health & Saf. Code, §§ 11351.5, 11359; Pen. Code, § 12316, subd. (b)(1).) The prosecutor also alleged that Devote committed the crimes to benefit a criminal street gang, and that he served a prior prison term and suffered a prior narcotics conviction. (Pen. Code, §§ 186.22, subd. (b)(1), 667.5, subd. (b); Health & Saf. Code, § 11370.2, subd. (a).)

In the evening of April 11, 2008, Los Angeles Police Officer Ralph Mendoza received a police dispatch stating that male Hispanic gang members had congregated at an intersection and were "yelling at passer-bys." The dispatch described one gang member as wearing black pants with a firearm tucked into his waistband. Mendoza drove to the intersection and saw two men in front of a liquor store. He stopped his vehicle and he and his partner walked to the entrance. Devote went inside the store and was "ducking" and walking toward the back of the store. Mendoza asked Devote to come outside and speak with him. When Devote did so, Mendoza ordered him to turn around and place his hands on his head. Devote wore black denim pants or baggie-type shorts.

Within 10 or 15 seconds, Police Officer Benjamin Aguilera arrived in response to the same police dispatch. Aguilera, a police gang-enforcement officer, recognized Devote and knew that he was a parolee following a firearms conviction. The police officers then conducted a parole search of Devote's residence, which was approximately 200 yards away. The officers discovered cocaine, marijuana, and scales inside a backpack in the residence, and ammunition in a bedroom.

Following presentation of evidence and argument by the parties, the trial court denied the suppression motion. The court decided that Devote's initial detention was unlawful, but that Officer Aguilera arrived immediately in response to the police dispatch and knew Devote to be a parolee.

The prosecutor then amended count 1 of the information to allege possession of cocaine for sale in violation of Health and Safety Code section 11351. On June 12, 2008, Devote waived his constitutional rights and pleaded nolo contendere to count 1. The trial court sentenced Devote to a low-term sentence of two years. The court awarded him 264 days of presentence custody and conduct credits, imposed various fines and fees, and dismissed the remaining counts and allegations.

On appeal Devote contends that the police officers' testimony at the preliminary hearing and suppression hearing is inconsistent with the police report; the clothing he wore did not match the description given in the police dispatch; Officer Aguilera did not know that he was a parolee; and that he did not move about inside the liquor store in a suspicious manner. In sum, he asserts that the officers' testimony is not credible.

In review of a trial court's ruling regarding a motion to suppress evidence, we defer to the court's findings, express or implied, where supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) In a motion to suppress evidence, the trial court possesses the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences. (People v. Lawler (1973) 9 Cal.3d 156, 160.) On appeal, all presumptions favor the exercise of that power. (Ibid.)

Here the trial court resolved the conflicting evidence regarding Devote's clothing, among other things, and determined the credibility of the officers' testimony. Sufficient evidence supports the trial court's implied factual findings. The search of Devote's residence was a reasonable parole search within the Fourth Amendment.

The judgment is affirmed.

We concur: YEGAN J., PERREN, J.


Summaries of

People v. Devote

California Court of Appeals, Second District, Sixth Division
Apr 20, 2009
2d Crim B211693 (Cal. Ct. App. Apr. 20, 2009)
Case details for

People v. Devote

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PETER C. DEVOTE, Defendant and…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Apr 20, 2009

Citations

2d Crim B211693 (Cal. Ct. App. Apr. 20, 2009)