From Casetext: Smarter Legal Research

People v. Gomez

California Court of Appeals, Fifth District
Feb 9, 2011
No. F059555 (Cal. Ct. App. Feb. 9, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No. BF129064A, Michael G. Bush and Michael B. Lewis, Judges.

Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.


OPINION

THE COURT

Before Gomes, Acting P.J., Kane, J., and Poochigian, J.

PROCEEDINGS

Appellant, John Samuel Gomez, was charged in an information filed September 15, 2009, with possession of marijuana for sale (Health & Saf. Code, § 11359, count one), possession of heroin for sale (Health & Saf. Code, § 11351, count two), possession of a handgun by a felon (Pen. Code, § 12021, subd. (a)(1), count three), felony possession of metal knuckles (§ 12020, subd. (a)(1), count four), felony possession of ammunition (§ 12316, subd. (b)(1), count five), and misdemeanor possession of narcotic paraphernalia (Health & Saf. Code, § 11364, count six). The information further alleged appellant had a prior narcotics conviction of Health and Safety Code, § 11379, within the meaning of section 11370.2, subdivision (a), of the Health and Safety Code.

Unless otherwise indicated, all statutory references are to the Penal Code.

After an evidentiary hearing that concluded on December 2, 2009, the trial court granted in part and denied in part appellant’s suppression motion. On December 8, 2009, appellant entered into a plea agreement in which he would admit count four, felony possession of brass knuckles, in exchange for the dismissal of the remaining allegations and a prison sentence of 16 months. Appellant executed an advisement of rights, waiver, and plea form acknowledging the terms of the plea agreement, the consequences of his plea, his constitutional rights, and waiver of those rights pursuant to Boykin/Tahl.

Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

The appellant acknowledged to the trial court that he understood the terms of the plea agreement, discussed the plea agreement with his counsel, understood his rights, and initialed and signed the change of plea form. The parties stipulated to a factual basis for the plea from the preliminary hearing transcript. Appellant pled no contest to count four. On February 5, 2010, the trial court denied appellant probation, sentenced him to prison for 16 months, noted he had total custody credits of 488 days, and that appellant had served his sentence. Appellant was released from custody. Appellant filed a timely notice of appeal, but failed to obtain a certificate of probable cause.

FACTS

On January 13, 2009, Sergeant Larry Studer of the Kern County Sheriff’s Department went to the home of Janice Gomez in Bakersfield. Studer had received information in the prior ten days from a citizen informant, who did not want to be involved, that drugs were being sold from the residence. Studer had been told a male was selling drugs that were inside a toolbox in the garage. Studer saw appellant talking to two other deputies.

Studer went to the front door, knocked, and entered the home with Deputy Gregory when Janice Gomez answered the door. Studer asked and received Janice Gomez’s permission to search the home after informing her he was looking for drugs. Janice Gomez gave permission to search the house, its contents, the garage, and its contents. No officer had a gun drawn and appellant was not under arrest or in handcuffs.

Studer and Gregory knocked on the garage door several times before the people inside let them in. The people inside the garage did not object to it being searched. Studer searched a large Craftsman toolbox where he found a loaded sawed-off shotgun. Studer searched an aluminum carrying case where he found a set of metal knuckles. Studer continued searching the Craftsman toolbox and found a vinyl CD case that contained a digital gram scale, a manual gram scale, numerous unused plastic baggies, a metal spoon, and four unused hypodermic syringes.

Studer searched a smaller toolbox to the side of the Craftsman toolbox where he found two prescription bottles wrapped in black electrical tape. These bottles contained five individual Ziploc baggies containing what appeared to be marijuana and more unused sandwich baggies. Studer looked through a blue aluminum can that contained several darts. In a fifth unlocked drawer in the Craftsman toolbox, Studer found a dart gun that went with the darts.

Studer came to a large leather jacket hanging in the garage. Appellant was no longer free to leave and Studer had advised him of his Miranda rights. Appellant entered the garage. Appellant said the jacket was his. No one asked permission to search the jacket. The jacket had a small baggie of marijuana, three rolled marijuana cigarettes, cigarette wrapping paper, and a black tube containing black tar heroin. Toward the end of the search, Janice Gomez signed a consent for the search.

Miranda v. Arizona (1966) 384 U.S. 436.

The lower drawers of the Craftsman toolbox were locked. Studer learned appellant had a key. Studer said that appellant unlocked the toolbox. The locked portion of the Craftsman toolbox contained the five Ziploc baggies of marijuana previously noted. After his arrest, appellant emptied his pockets and a deputy found what appeared to be methamphetamine.

The trial court issued a written ruling on the suppression motion on December 8, 2009. The court noted that appellant’s wife was authorized to give permission to search areas under her exclusive control or for any area under her joint control or access. The court found the deputies were allowed to search the garage. When they came to the toolboxes, however, it was reasonable to believe the wife only had access to unlocked boxes. Once deputies determined appellant had a key for the locked portion of the toolbox, they needed to make a determination if the wife also had a key. Because this was not done, it was unreasonable for deputies to rely on the wife’s consent and all items in the locked portion of the toolbox were ordered suppressed.

Because the leather jacket was large and appellant admitted it belonged to him, it was unreasonable for the deputies to rely on the wife’s consent to search without determining if she had joint control of it. The items found in the jacket were suppressed. The court found that at a minimum, appellant could have been arrested for possession of the metal knuckles and sawed-off shotgun. Therefore, the search incident to his arrest was justified.

APPELLATE COURT REVIEW

Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on August 12, 2010, we invited appellant to submit additional briefing. To date, he has not done so.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Gomez

California Court of Appeals, Fifth District
Feb 9, 2011
No. F059555 (Cal. Ct. App. Feb. 9, 2011)
Case details for

People v. Gomez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOHN SAMUEL GOMEZ, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Feb 9, 2011

Citations

No. F059555 (Cal. Ct. App. Feb. 9, 2011)