Opinion
B156981.
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL BELMONTEZ ROCHA, Defendant and Appellant.
Lyn A. Woodward, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Richard T. Breen, Deputy Attorney General, for Plaintiff and Respondent.
Miguel Belmontez Rocha appeals a judgment after his guilty plea to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) following the denial of his motion to suppress evidence. We conclude he waived his appeal; and his counsel was not ineffective. We affirm.
FACTS
Shortly before 1 a.m., Monday morning, Juan Perez called 911 and said people in a small red car were trying to break into his vehicle and he heard the sound of his car alarm. He said they drove by five times and slowed down each time they approached his house. The dispatcher relayed this information to police officer Steve Trickle who, within a few minutes, arrived at the scene. He saw a red car 100 to 150 yards away from Perezs house. No other vehicles were on the road at that hour. As Trickle followed in his marked police car, the occupants of the red car "stared" back at him in a "suspicious" manner. They were moving toward the street where Perez resided. Trickle turned on his lights, made "a vehicle stop," and approached the drivers side of the red car.
He saw Rocha sitting on the passenger side with his right hand "balled up into a fist." He asked him to open his hand, but Rocha repeatedly refused. Trickle thought he might have a weapon. He saw Rocha put a "clear plastic baggie" into a brown paper bag. Trickle believed the plastic "baggie" was the type used to carry controlled substances because of the way it was "twisted" on one end. He searched the brown bag and saw that the baggie contained a white-powdery substance which was later identified as cocaine. Rocha moved to suppress that evidence. The court denied the motion.
Rocha signed a guilty plea agreement and initialed a waiver of appeal provision in it. It stated, "I now waive and give up my right to appeal in this case." The court accepted the plea agreement and found Rocha appeared with counsel and freely and voluntarily waived his rights.
At a sentencing hearing a week later the court stated, "Mr. Rocha, this is an appealable order. If you wish to appeal, file your notice in this court within 60 days."
Rocha filed a notice of appeal which he labeled as a "Non-certificate appeal" and stated, "The ground for appeal is denial of a Penal Code section 1538.5 motion to suppress[.]"
DISCUSSION
I. Waiver of Right to Appeal
The Attorney General contends Rocha waived his right to appeal by signing the plea agreement and by not obtaining a certificate of probable cause. We agree.
A defendant may waive the right to appeal in a negotiated plea agreement. (People v. Panizzon (1996) 13 Cal.4th 68, 79-80, 913 P.2d 1061.) Rocha did this by initialing the appeal waiver provision. He now claims that was "inadvertent." But there is no evidence to support this. He appeared with counsel and the court found his waivers were voluntary.
Rocha contends he has a right to raise an ineffective assistance of counsel claim on appeal. His "Non-certificate" notice of appeal stated he was raising only a challenge to the denial of his suppression motion. That was sufficient for an appeal following a guilty plea which is exclusively confined to suppression issues. (Cal. Rules of Court, rule 31(d).) But Rochas opening brief raises a different issue, the ineffective assistance of his counsel prior to the entry of his guilty plea. To raise that issue on appeal, Rocha first had to obtain a certificate of probable cause. (People v. Stubbs (1998) 61 Cal.App.4th 243, 245.) He did not do that.
Rocha notes that the court at the sentencing hearing stated he had the right to appeal. But he has not shown that this brief general remark was either a modification of the plea agreement or an exemption from the certificate of probable cause requirement. But even if it was, the result on the merits will not change.
II. Ineffective
Assistance of Counsel
Rocha contends his counsel was ineffective because he did not renew his meritorious motion to suppress. We disagree. To prevail on an ineffective assistance claim, Rocha must show that his counsels performance was both "deficient" and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052.)
Rochas motion to suppress alleged that the police lacked reasonable suspicion to stop his car. "Reasonable suspicion is a less demanding standard than probable cause and is determined in light of the totality of the circumstances. [Citation.]" (People v. Coulombe (2000) 86 Cal.App.4th 52, 56.) The police may stop and detain a suspect based on such factors as the officers knowledge of the neighborhood and a suspects "evasive" actions or suspicious activities "very late at night." (People v. Souza (1994) 9 Cal.4th 224, 240, 885 P.2d 982; compare People v. Medina (2003) __ Cal.App.4th __ .)
Trickle knew from the dispatch report that close to 1 a.m., Monday morning, people in a small red car were trying to break into Perezs automobile and had passed by it several times. When he promptly arrived at the scene, he saw Rochas red car which was less than 150 yards away from Perezs home. It was the only vehicle on the road, a place where there was "little traffic" at that hour. It was moving in the direction of Perez house and the occupants looked back at Trickle in a "suspicious" way. Trickle made the "stop" about "10 houses" away from Perezs residence. He had reasonable suspicion to stop Rochas car based on the information from the dispatcher, the early morning hour, and what he saw. (People v. Souza, supra, 9 Cal.4th at p. 240.)
Rocha contends the search of the bag inside his car without a warrant violated the Fourth Amendment. We disagree. Where police have probable cause to believe a bag inside a car contains contraband, they may enter the car to search the bag without a warrant. (California v. Acevedo (1991) 500 U.S. 565, 573, 114 L. Ed. 2d 619, 111 S. Ct. 1982.) Where they lawfully stop a car and see contraband, they may seize it and if they reasonably believe the suspect is armed, they may search the area where a weapon may be located. (Michigan v. Long (1983) 463 U.S. 1032, 1049, 77 L. Ed. 2d 1201, 103 S. Ct. 3469; People v. Rico (1979) 97 Cal. App. 3d 124, 133, 158 Cal. Rptr. 573.)
Trickle reasonably believed Rocha was hiding something because he refused to open his hand. He saw him put a "clear plastic baggie," the type used to carry controlled substances, into a brown paper bag. Because this was in plain view, he had probable cause to search the brown bag without a warrant. (California v. Acevedo ,supra, 500 U.S. at p. 573; People v. Rico, supra, 97 Cal. App. 3d at p. 133.) Moreover, because of Rochas clenched fist and evasive actions, Trickles belief that he may have hidden a weapon was reasonable and justified a protective search of the bag. (Michigan v. Long ,supra, 463 U.S. at p. 1049.)
Because a renewed motion to suppress would not have been granted, Rocha has not shown that his counsels performance was prejudicial.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.