Opinion
G043270
05-25-2012
THE PEOPLE, Plaintiff and Respondent, v. THOMAS STEVEN LIODAS, Defendant and Appellant.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 09WF2127)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Pickett and Thomas M. Goethals, Judges. Affirmed.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant's guilty plea is valid. The trial court did not err when it denied his motion to suppress evidence. We affirm.
I
FACTS
Defendant Thomas Steven Liodas served two tours of duty in Vietnam and received the Bronze Star for his service. He was found to be ineligible to enter Orange County's Combat Veterans Court by Judge Wendy Lindley.
Judge Robert Gallivan heard and denied a motion to relieve the public defender on October 26, 2009. Judge Carla Singer heard and denied a motion to relieve the public defender on November 5, 2009. We have reviewed the sealed transcripts from both hearings and find no error in the courts' conclusions defendant had been properly represented. (People v. Marsden (1970) 2 Cal.3d 118.)
Defendant filed a written motion seeking the court to order production of the personnel records of two Huntington Beach police officers regarding credibility, acts of moral turpitude, illegal detentions, arrests, searches, seizures as well as employment records. Judge Gregg Prickett conducted a hearing and in camera review on that motion on January 8, 2010. We have reviewed the sealed and unsealed transcripts of that proceeding as well as the sealed declaration in support of the discovery. We find no error. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
A motion to suppress evidence under Evidence Code section 1538.5 was held on January 15, 2010 before Judge Pickett. A Huntington Beach police officer testified he observed defendant "cut off another vehicle causing it to [brake] hard in order to avoid a collision." Thereafter the officer followed defendant and observed his registration had expired. He initiated a traffic stop. The officer told defendant to exit the vehicle. Defendant complied, but the officer observed "defendant lean forward in a manner consistent with putting something either underneath the front driver's seat of the vehicle and/or center console area." The officer's partner told him "that he saw a bottle of alcohol underneath the driver's seat." The officer then observed a bottle of Seagram's alcohol with its seal broken. He leaned into the car to retrieve the bottle and, while leaning, observed "the bulbous end of a what [he] recognized to be a methamphetamine pipe." He retrieved the pipe, which was inside a bag. In the same bag, he "located two baggies containing a substance that was consistent with being methamphetamine."
Defendant testified at his motion, too. He said when the officer ordered him out of his car, he "had an electric door lock. [He] pushed the master control switch" and locked the door behind him when he got out of the car. But the windows of his car were down. The officer "asked [defendant] if [he] wanted to sit on the front bumper, since [he] had a broken leg [he] complied with that. [He] sat on the front bumper putting [his] crutches — leaning against the front of the police vehicle." Defendant was asked whether he observed the police enter his vehicle. He responded: "No, I did not. I had my back to — when I went to the front of the police car, I was crouching with my back to them."
The prosecutor asked defendant whether he knew the bottle was in his car, and defendant replied: "To my knowledge there was a bottle in the back of the car is what I recall." To a question about whether there was methamphetamine in his car, defendant responded: "I have no idea." To a question about the presence of a pipe in his car, defendant said: "I had no idea of anything . . . illegal was in that vehicle." When defendant was pressed with whether or not the pipe was in plain view, he responded: "I don't know. I didn't see it." When he was asked, "Was that your methamphetamine that was found in the car?" he responded, "No, it was not."
Count two of the information alleged receiving a stolen credit card. The court ruled on the motion to suppress: "1538.5 is granted as to the credit card denied as to all other grounds."
On January 28, 2010, defendant pled guilty to violating Health and Safety Code section 11379, subdivision (a). The facts he offered to the court to support his guilty plea state: "In Orange County, California on 10/7/09 I did knowingly and unlawfully transport a useable quantity of methamphetamine for personal use." On his guilty plea form, defendant initialed the box stating he understood he had the right to appeal from the court's decisions and orders, and that he gave up that right.
Judge Thomas Goethals granted defendant's motion to withdraw his not guilty plea and accepted a guilty plea. The court placed defendant on probation and ordered him to complete drug treatment pursuant to Penal Code section 1210. One of the terms and conditions of probation was for defendant to serve 224 days in Orange County jail.
Defendant filed a notice of appeal, attaching a request for a certificate of probable cause, both dated February 11, 2010. On the notice of appeal, he checked two boxes: "This appeal is based on the denial of a motion to suppress evidence under Penal Code section 1538.5," and "This appeal challenges the validity of the plea or admission."
Judge Goethals denied defendant's request for a certificate of probable cause on June 30, 2010. The minute order from that day reads: "This court finds that it does maintain the authority, despite the lapse of time, to grant this defendant a certificate of probable cause. Nonetheless, in light of the history of this case and the extensive negotiating which led to its resolution, the court respectfully declines to do so."
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant's behalf. Defendant was given 30 days to file written argument on defendant's own behalf. That period has passed, and we have received no communication from defendant.
In the brief, counsel includes a section titled "Anders issues" (Anders v. California (1967) 386 U.S. 738). In that section, he lists three potential issues: whether or not defendant's written waiver of appeal is effective absent an oral expression in open court; whether the court erred in denying defendant's motion to suppress; and, whether the court "belatedly" denied defendant's request for a certificate of probable cause.
II
DISCUSSION
Whether or not defendant waived his right to appeal and whether or not the court erred by not denying defendant's request for a certificate of probable cause sooner than it did does not matter since the court did not err in denying defendant's motion to suppress. Thus two of counsel's three potential issues are moot.
Our role in reviewing the resolution of a motion to suppress is limited. The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences is vested in the trial court. On appeal, all presumptions favor proper exercise of that power, and the trial court's findings must be upheld if supported by substantial evidence. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable. (People v. Weaver (2001) 26 Cal.4th 876, 924.)
The burden of proving the justification for a warrantless search or seizure lies squarely with the prosecution. (People v. Williams (1999) 20 Cal.4th 119, 136.) Here the officer saw illegal items in plain view and was justified in seizing them. (People v. Wilborn (1999) 70 Cal.App.4th 339, 348.)
The record does not support defendant's claim in his notice of appeal that his guilty plea is invalid. Defendant stated on his guilty plea form he was voluntarily and freely pleading guilty after discussing the charges with his lawyer and the court so found. Besides signing the guilty plea form, he initialed specific provisions about his right to an attorney, his right to a speedy and public trial by jury, his right to confront and cross-examine witnesses, his right to testify or remain silent, his right to present evidence and the immigration consequences of a guilty plea. He personally told the judge he read the entire package of documents and understood he was giving up all the rights listed on the form. (People v. Mosby (2004) 33 Cal.4th 353, 358-359.) To the extent the claim is based on matters outside the appellate record, it is more appropriately raised in a petition for writ of habeas corpus, as counsel acknowledges. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
We have examined the entire record. We discussed the potential issues noted by counsel and those on defendant's notice of appeal. We have found no other issues to discuss. (People v. Wende (1979) 25 Cal.3d 436.)
III
DISPOSITION
The judgment is affirmed.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.