Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. BA343614, Michael A. Tynan, Judge
Richard L.Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, A. Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Lester Luchien appeals his conviction by plea for possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), entered after the trial court denied a motion to suppress evidence. (Pen. Code, § 1538.5.) The trial court dismissed three other counts for possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), and granted appellant five years probation with one year county jail. We affirm.
Facts
Evidence was received at the preliminary hearing that appellant conspired with five individuals, Beverly Edwards, Manuel Baynori, Rodney Moore, Brandon Jones, and Ernest Bridges, to sell rock cocaine in Los Angeles. On July 15, 2008, narcotics Officer Rudy Gonzalez approached Edwards, Baynori, and Moore at the corner of 75th Street and Central Avenue and asked if anyone was selling rock cocaine. Baynori asked how much he wanted to buy. Officer Gonzalez replied $20.
Moore told Officer Gonzalez to give the money to Edwards because Edwards was going to get the cocaine. Edwards said that her "hook-up" was on 84th Street and that she had to take the bus to get the drug Moore vouched for Edwards and said that she would not steal his money. Officer Gonzalez took Edwards' purse as collateral and gave her $20.
Edwards and Moore walked across the street to appellant who was parked in a red vehicle in front of a shop. Edwards entered and exited the vehicle, went into the shop, and returned to the vehicle. Appellant and Edwards drove off, followed by a team of undercover officers.
Officer Gonzalez, Moore, Baynori, and Ernest Bridges waited for Edwards. About 15 minutes later, appellant and Edwards returned.
Edwards got out of the vehicle and handed Bridges an object. Bridges walked over to Officer Gonzalez and said, "give me [Edward's] purse and I'll give you the rock."
Officer Gonzalez exchanged the purse for an off-white solid that appeared to be rock cocaine. Edwards yelled out, "Where is my five dollars?" Officer Gonzalez had agreed to pay Edwards and handed $5 to Baynori to give to Edwards.
Officer Gonzalez signaled that a narcotic transaction had taken place and radioed the description and location of the suspects. Edwards was parked at the corner of Central Avenue and 76th Street, about 200 feet away. One of the officers searched appellant's car, finding rock cocaine in the ashtray.
Appellant's motion to suppress evidence was denied at the preliminary hearing and denied after he was bound over to superior court. (Pen. Code, § 1538.5, subd. (i).) On review, we defer to the trial court's express and implied factual findings which are supported by substantial evidence and determine whether on the facts so found, the search was reasonable. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Probable Cause
Appellant argues there is no evidence that the officers had probable cause to search the vehicle or arrest appellant. If a motion to suppress evidence is made at the preliminary hearing, the prosecution may not rely on Proposition 115 hearsay evidence to show a lawful search. (Pen. Code, § 872, subd. (b); Adachie, Cal. Criminal Law: Procedure & Practice (Cont.Ed.Bar 2009) § 16.7, p. 432.) Nonhearsay testimony by a live witness is required. (People v. Johnson (2006) 38 Cal.4th 717, 726; Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927-928.)
Officer Gonzalez was the only witness to testify and did not see where appellant and Edwards went in the vehicle. "[W]here a police communication is the source of the information assertedly constituting cause to detain, the court must look to the transmitting officer and determine whether that officer had information constituting probable cause or reasonable suspicion." (In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1643.)
"Probable cause has been generally defined as a state of facts that would lead a reasonable officer of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that a crime had been or was being committed. [Citations.] The question to be answered, then, is whether the facts as observed by [Officer Gonzalez], combined with his experience and knowledge of the area, would lead a reasonable person to believe that a drug transaction was in progress." (People v. Mims (1992) 9 Cal.App.4th 1244, 1247.)
Officer Gonzalez asked for $20 worth of rock cocaine, gave Edwards $20, and saw Edwards and appellant leave in the vehicle to get the drugs. Edwards said that her "hook- up" was on 84th Street and that it was too far to walk.
Appellant returned 15 minutes later, dropped Edwards off, and parked. Edwards handed an object to Bridges who walked over to Officer Gonzalez and exchanged cocaine for Edwards' purse. After Officer Gonzalez received the cocaine, Edwards asked that she be paid $5.
Based on Officer Gonzalez's observations and the completed drug sale, the officer reasonably believed that appellant assisted Edwards in the transport and sale of drugs and that drugs may be in the vehicle. (See United States v. Ross (1982) 456 U.S. 798, 823-824 [72 L.Ed.2d 572, 592-593 [discussing automobile exception to Fourth Amendment warrant requirement]; People v. Carrillo (1995) 37 Cal.App.4th 1662, 1667 [same].) "It is difficult to imagine what further visual evidence of a street sale of narcotics could be required to establish reasonable cause for an arrest...." (People v. Garrett (1972) 29 Cal.App.3d 535, 539.) The trial court properly concluded there was probable cause to arrest appellant and search the vehicle. (See Arizona v. Gant (2009) 556 U.S. __, ___ [129 S.Ct. 1710, 1714] [vehicle may be searched incident to arrest based on reasonable suspicion that evidence of offense of arrest might be found in vehicle].)
Appellant argues that it is uncertain whether the arrest preceded the search and claims that a different sequence of events (i.e., that the vehicle was searched before the arrest] changes the Fourth Amendment analysis. Appellant, however, concedes that the officers had probable cause to stop him based on a reasonable suspicion that he was involved in the drug sale. Where the "car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment... permits the police to search the vehicle without more. [Citation.]" (Pennsylvania v. Labron (1996) 518 U.S. 938, 940 [125 L.Ed.2d 1031, 1036].)
The judgment (order denying motion to suppress evidence) is affirmed.
We concur: GILBERT, P.J., PERREN, J.