Opinion
B228050
08-01-2011
THE PEOPLE, Plaintiff and Respondent, v. CALUONG CHARLIE LAU, Defendant and Appellant.
I. Mark Bledstein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. GA077153)
APPEAL from a judgment of the Superior Court of Los Angeles County, Laura F. Priver, Judge. Affirmed.
I. Mark Bledstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Following the denial of his motion to suppress evidence made pursuant to Penal Code section 1538.5, appellant, pursuant to a plea agreement, pled guilty to possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and admitted he had a prior conviction within the meaning of the Three Strikes law (§ 1170.12, subds. (a) - (d).) Appellant also admitted he was in violation of probation on another case. He was sentenced to 14 years in state prison on the probation violation and concurrent term of 4 years on the open case.
Appellant contends the trial court erred in denying his suppression motion because, by conducting a warrantless search of his person without his consent, a police officer improperly prolonged the duration of the detention in violation of his Fourth Amendment rights. We find the record supports the court's finding that appellant consented to the search and, therefore, affirm the judgment.
II. FACTS ADDUCED AT THE SUPPRESSION MOTION
A. Prosecution
On June 19, 2009, Officers Huynh and Puente of the San Gabriel Police Department went to the Fisherman's Wharf bar to conduct a routine review of the establishment's business and alcohol license. Huynh observed appellant and opined he was under 21 years of age.
Huynh approached appellant and asked for his age. Because the music was too loud for the officer to hear appellant's response, Huynh asked appellant to step outside of the bar. Appellant complied.
Huynh was concerned for his safety because appellant's baggy clothes and tattoos were consistent with gang membership. The officer noted appellant was seated in the bar with people Huynh knew to be gang members. He also knew gang members typically carry weapons and there had been "numerous [gang-related] shootings" in the area. Thus, after requesting appellant's identification, the officer asked appellant for permission to conduct a pat-down search. Appellant responded, "Sure." Approximately one minute had elapsed between the time the officers and appellant reached the outdoors and Huynh's request to search appellant.
During the pat-down search, Huynh recovered a loaded .38 caliber handgun from appellant's right front pants pocket. Appellant was arrested.
B. Defense
Appellant testified in his own behalf. He admitted he was on felony probation and was in the bar with a gun in his pocket. Appellant "associate[ed] with" the White Dragon gang. While inside the bar, he explained to Huynh that he was over 21 years old but Huynh "told [him]" to go outside.
Once outside, appellant provided the officer with a valid California driver's license indicating he was 25 years old. Huynh asked if he could search appellant. Appellant responded, "no" but the officer disregarded his answer and conducted the search.
III. DISCUSSION
We may affirm the trial court's ruling denying a suppression motion on any ground supported by the record. (People v. Zapien (1993) 4 Cal.4th 929, 976; see also People v. Boyer (2006) 38 Cal.4th 412, 449; People v. Robles (2000) 23 Cal.4th 789, 801, fn. 7.) Because the power to judge the credibility of witnesses, resolve conflicts in testimony, weigh evidence, and draw factual inferences is vested in the trial court, all presumptions favor the trial court's proper exercise of that power on appeal. (People v. Alexander (2010) 49 Cal.4th 846, 883.) We therefore defer to the trial court's findings of fact -whether express or implied - if they are supported by substantial evidence. (Ibid.; People v. Williams (1988) 45 Cal.3d 1268, 1301; People v. Laiwa (1983) 34 Cal.3d 711, 718.) Whether consent to search was given is a factual determination and is, therefore, entitled to deference. (People v. Memro (1995) 11 Cal.4th 786, 846-847.)
With respect to the issue of consent, the trial court evaluated the testimony given at the hearing and concluded: "I do not accept [appellant's] testimony that he said [']no[']. I think that he did consent to that search and became nervous once the gun was discovered . . . ." The ruling was supported by the officer's testimony. Although appellant testified he did not provide consent to search, it was within the court's prerogative to disbelieve the testimony of appellant - a convicted felon and admitted gang associate.
We defer to the court's finding regarding the credibility of the witnesses and its conclusion that appellant provided the officer with consent to a pat-down search. Accordingly, even if we were to conclude appellant was detained when he was asked to exit the bar, the subsequent search of appellant was constitutionally permissible and, therefore, did not improperly prolong the detention.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS KUMAR, J. We concur:
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
TURNER, P. J.
KRIEGLER, J.