Opinion
G058279
03-25-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWARD ROBERT LOERA, Defendant and Appellant.
Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Warren J. Williams, Deputy Attorney General 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18WF2438) OPINION Appeal from a judgment of the Superior Court of Orange County, Andre Manssourian, Judge. Affirmed as modified. Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Warren J. Williams, Deputy Attorney General for Plaintiff and Respondent.
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INTRODUCTION
Defendant Edward Robert Loera filed a notice of appeal after pleading guilty to one count each of possession of heroin for sale and possession of methamphetamine for sale and admitting sentencing enhancement allegations including that he served a prior prison term pursuant to Penal Code section 667.5, subdivision (b). His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel identified potential issues to assist us in our independent review. We provided defendant 30 days to file written argument on his own behalf; he did not do so.
After reviewing the record, we asked the parties to brief the impact, if any, of Senate Bill No. 136 (2019-2020 Reg. Sess.) on this appeal and to address, in particular, whether this court should strike the prior prison term sentencing enhancement or remand for resentencing. In supplemental letter briefs, defendant's appointed counsel and the Attorney General both argue that we should strike defendant's admission of the prior prison term sentencing enhancement allegation and not remand for resentencing because it is unwarranted. We agree.
We have examined the entire record and appointed counsel's Wende/Anders brief; we have found no other reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore strike defendant's admission of the prior prison term sentencing enhancement allegation and affirm the judgment as so modified.
BACKGROUND
Defendant was charged in an information with one count of possession for sale of heroin (Health & Saf. Code, § 11351) and one count of possession for sale of methamphetamine (id., § 11378). The information alleged as to count 1, pursuant to Penal Code section 1203.07, subdivision (a)(1) and Health and Safety Code section 11352.5, subdivision (1), defendant violated Health and Safety Code section 11351 by possessing for sale more than 14.25 grams of heroin. As to count 1, the information also alleged, pursuant to Penal Code section 1203.07, subdivision (a)(11), defendant was previously convicted of violating Health and Safety Code section 11351. As to count 2, and pursuant to Penal Code section 1203.07, subdivision (a)(11), the information alleged defendant was previously convicted of violating Health and Safety Code section 11378. The information also alleged defendant suffered a prior conviction for which he served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
Defendant filed a motion to suppress evidence pursuant to Penal Code section 1538.5. We summarize the testimonial evidence presented at the hearing as follows.
Around 7:00 p.m. on November 1, 2018, Costa Mesa Police Sergeant James Brown responded to a call at a trailer home in Huntington Beach. He was informed that two probation officers inside the home had detained three people in connection with narcotics and probation violations. While Brown and Costa Mesa Police Officer Vijay Chawla were on their way to the home, one of the probation officers updated Brown with information. He said that a white pickup truck had pulled up in front of the residence, two people got out of the truck, and those two people did not go into the residence but did not leave the premises either; the probation officer expressed concern for the probation officers' safety inside the home.
When Brown and Chawla arrived at the residence, they approached and detained defendant and a woman who were both standing near the truck. Brown asked defendant for identification; defendant, who appeared nervous and was sweating, provided identification and told Brown he was there to visit "someone named Low." The woman told Brown that her identification was inside her purse which was inside the truck. Brown walked over to the driver's side of the truck and through the open door window smelled the "strong odor of heroin . . . emanating from inside the vehicle."
After Brown asked defendant about marijuana, Brown opened the driver's side door of the truck and saw a plastic baggie inside the door's interior pocket containing various bindles and a visible black tar substance which, based on his training and experience, Brown believed included heroin. Brown thereafter retrieved the woman's purse from inside the truck. Brown asked the woman if he could take her identification out of her purse; she told him no. For officer safety reasons, he opened the purse to conduct a visual search for weapons and saw a syringe containing a liquid brownish substance that he believed was heroin. The baggie found in the interior pocket of the truck's driver's side door contained packages of methamphetamine and heroin. Pocket knives with heroin-like residue were also found inside the truck door which Brown testified appeared "like they cut it up or something like that."
Following the hearing, the trial court denied the motion. The court found defendant's "brief" detention by Brown and Chawla was justified by "the information [Brown] received from the deputy probation officers in order to determine what connection, if any, these folks that were kind of lurking into a dimly lit area might be to what was going on inside the premises. It didn't appear to be prolonged in nature. It seemed to be a fluid conversational environment to try to ascertain folks' identification and things of that nature."
The trial court also found Brown to be a credible witness and that sufficient foundation supported his opinion he smelled heroin inside the truck, which supported probable cause to open the truck door and find heroin. Regarding Brown's question to defendant about marijuana, the court stated, "Whether it is logical or illogical, doesn't necessarily lead to any reasonable inference that would support any argument or fabrication or trying to come up with a reason why the stop is good when originally they . . . were talking about marijuana."
Defendant thereafter pleaded guilty to both counts and admitted the truth of the allegations of the information, including the prior prison term sentencing enhancement allegation. As the factual basis for the guilty plea, defendant stated: "In Orange County, California on 11/1/19 I unlawfully possessed for purposes of sales, the controlled substances [of] heroin & methamphetamine. I was previously convicted of a violation of H & S 11351."
The trial court imposed the upper term of four years on count 1 and a concurrent middle term of two years on count 2 which collectively, pursuant to Penal Code section 1170, subdivision (h)(5), would constitute a divided sentence whereby defendant would serve two years in county jail followed by a two-year mandatory supervision term. Defendant's notice of appeal specified that his appeal was based on the denial of his motion to suppress evidence.
Defendant's total four-year term was ordered to run concurrently with a sentence he received in another case, Orange County Superior Court Case No. 19WF0512.
ANALYSIS
In the Wende/Anders brief, appointed counsel suggests we consider three potential issues related to the trial court's denial of the motion to suppress. None of the issues constitutes an arguable issue on appeal. First, the record does not in any way support an argument that defendant's detention was unduly prolonged before Brown's discovery of heroin inside the truck.
Second, the trial court did not abuse its discretion by denying defendant's trial counsel's request that the court itself smell the heroin discovered in the truck's driver's side pocket at the hearing. "To be admissible, demonstrative evidence must satisfy two requirements: first the evidence must be a reasonable representation of that which it is alleged to portray; and second, the evidence must assist the [fact finder] in [its] determination of the facts of the case, rather than serve to mislead[.] [Citations.] Demonstrative evidence must accurately depict what it purports to show. [Citation.] The demonstration must be relevant to an issue in dispute 'and "must have been conducted under at least substantially similar, although not necessarily absolutely identical, conditions as those of the actual occurrence."'" (People v. Rivera (2011) 201 Cal.App.4th 353, 363.)
Brown testified at the hearing about his training and experience in identifying heroin based on its smell. He testified that when he stood near the open window of the truck, he detected the smell of heroin coming from inside the truck's cabin, which not only contained the package found in the driver's side door interior pocket, but also the syringe containing heroin inside the woman's purse, as well as knives containing drug residue. Defendant's trial counsel's proposed in-court demonstration of how the package containing heroin smelled in open air over seven months later did not constitute a reasonable representation of the circumstances under which Brown detected the odor of heroin so as to assist the court sitting as the trier of fact in ruling on the motion to suppress.
Finally, as the trial court found Brown's testimony to be credible, and nothing in the record shows it was inherently incredible, defendant has failed to show an arguable issue exists as to whether Brown's testimony that he had smelled heroin was a false, "post-Hoc Justification for the search, which therefore lacked probable cause."
We sent out an order informing the parties that upon our independent review of the record as required by Wende, supra, 25 Cal.3d 436, we identified an issue which might, if resolved favorably to defendant, result in the striking of the prior prison term sentencing enhancement. Effective January 1, 2020, Senate Bill No. 136 amended Penal Code section 667.5, subdivision (b) to provide that the one-year prior prison term sentencing enhancement apply only for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Jennings (2019) 42 Cal.App.5th 664, 681; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) In our order, we noted that defendant had admitted the truth of the prior prison term sentencing enhancement alleged against him which the trial court thereafter struck for purposes of sentencing only. We further noted defendant was not charged with any sexually violent offense. We invited the parties to file supplemental letter briefs on the impact of Senate Bill No. 136 on this appeal and whether this court should strike the prior prison term sentencing enhancement or remand for resentencing.
In the supplemental brief, the Attorney General stated that: "Senate Bill No. 136 applies retroactively to [defendant]. And because the trial court imposed the upper term on the primary count and already exercised its discretion not to impose a one-year term for the prison prior, the appropriate remedy under these circumstances is for the court to strike the prison prior enhancement without any need for remand and resentencing." Defendant's appointed counsel agreed that this court should strike the admission of the prior prison term sentencing enhancement and that remand for resentencing is not warranted. We agree with counsel and strike the admission of the prior prison term sentencing enhancement.
We have reviewed the record in accordance with our obligations under Wende and Anders, and find no other arguable issues on appeal. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.)
DISPOSITION
The judgment is modified to strike defendant's admission of the prior prison term sentencing enhancement allegation; the judgment is affirmed as so modified. The trial court is directed to prepare an amended abstract of judgment and forward a copy of it to the Department of Corrections and Rehabilitation.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.