Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SA067930, Robert P. O’Neill, Judge.
Linda Acaldo, 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, Assistant Attorney General, Sarah J. Farhat and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
After the trial court denied his motion to suppress items recovered from a locker at his place of employment, Joshua Duran Smith agreed to plead no contest to two counts of sexual penetration by foreign object. (Pen. Code, § 289, subd. (a)(1).) In accord with a negotiated plea agreement, the trial court sentenced Smith to a low term of three years on one count, and a concurrent low term of three years on the second count. We affirm.
All further section references are to the Penal Code.
FACTS
On April 2, 2008, Smith approached 15-year-old T.D. as she was waiting at a bus stop near Crenshaw and Slauson, and began talking to her about school and sports. When Smith asked T.D. for her telephone number before she got on the bus, T.D. gave it to him because she thought he was cute. A short time later, T.D. exited the bus near Slauson and Vermont, only to find Smith had followed her there in his car. At that location, Smith got out of his car, approached T.D. again, grabbed her purse, and threw it into his car. When T.D. tried to retrieve her purse, Smith pushed her into the back seat, got on her back, and sexually assaulted her. T.D. did not tell anyone about the incident at the time because she was afraid that her mother would blame her for what had happened.
On May 23, 2008, Smith accosted another minor, H.W., but she was able to break free and immediately called the police. El Segundo Police Detective Kenneth Mulroney investigated the attack on H.W.
On May 28, 2008, Detective Mulroney arrested Smith at a Fry’s Electronics store where he worked. During an interview at the police station after his arrest, Smith stated that he wanted to retrieve his personal property from his locker at Fry’s. Detective Mulroney went to the Fry’s store while Smith was in custody, and retrieved items from Smith’s locker, including loose papers with female’s names and phone numbers on them. One of the phone numbers turned out to belong to T.D. On May 29, 2008, a detective called T.D., and, at that time, she stated that she had “almost” been raped by a man whom she knew as “Jay, ” and whom she had met on her way home from school.
In October 2008, following a preliminary hearing at which both T.D. and H.W. identified Smith as their assailant, the People filed an information charging him with one count of assault of H.W. with intent to commit a felony (count 1; § 220, subd. (a)); five counts of sexual penetration of T.D. by foreign object (counts 2-5, 7; § 289, subd. (a)(1)); one count of forcible rape of T.D (count 6; § 261, subd. (a)(2)); and one count of attempted sodomy of T.D. by use of force (count 8; §§ 286, subd. (c)(2); 664). At a pretrial conference in December 2008, the trial court dismissed counts 6 and 7. (§ 1385.)
In January 2009, Smith filed a motion to suppress all of the items recovered from his locker at the Fry’s store because (1) Detective Mulroney did not have probable cause to believe that any item related to a crime would be found in Smith’s locker; (2) Smith did not give his consent to the search; and (3) Detective Mulroney failed to get a search warrant. Smith’s motion was the subject of an evidentiary hearing on January 26, 2009. The People called Detective Mulroney to testify; Smith called Jason Michael Drew, an assistant manager at Fry’s, to testify. At the conclusion of the hearing, the trial court denied Smith’s motion, expressly finding that he gave consent to search the locker.
On March 25, 2009, Smith waived his constitutional rights, and pled no contest to the sexual penetration by foreign object offenses alleged in counts 2 and 3. (§ 289, subd. (a)(1).) In accord with a negotiated plea agreement, the trial court dismissed the remaining charges alleged in counts 1, 4, 5, and 8, and sentenced Smith to a low term of three years on count 2, and a concurrent low term of three years on count 3.
Smith filed a timely notice of appeal.
DISCUSSION
Smith contends his convictions must be reversed because the trial court erred in denying his motion to suppress. His unstated, implicit argument is that T.D.’s allegations must be viewed as “fruit of the poisonous tree” because, without finding T.D.’s telephone number in Smith’s locker at Fry’s, T.D. would never have been found. We disagree.
When presented with a motion to suppress, the trial court determines the historical facts, selects the rule of law, and applies the law to the facts. (People v. Hoyos (2007) 41 Cal.4th 872, 891.) On appeal, we review the trial court’s resolution of the factual inquiry under the deferential substantial evidence standard. (Ibid.) The trial court’s ruling on the law applicable to the facts is subject to our independent a review. (Ibid.)
At a motion to suppress where no search warrant was obtained, it is the People’s burden to establish a constitutionally permissible basis for the search. (People v. Cantor (2007) 149 Cal.App.4th 961, 965.) Free and voluntary consent to a search is recognized one such exception to the requirement of a warrant. (See People v. James (1977) 19 Cal.3d 99, 106.) Whether a person consented to a search is a factual question, and a trial court’s determination that consent was given will be upheld where it is supported by substantial evidence. (Id. at p. 107.)
First, we reject Smith’s arguments that the evidence at the hearing on his motion to suppress did not establish that Detective Mulroney had probable cause to arrest Smith for any crime on May 29, 2008. The reporter’s transcript from the hearing on Smith’s motion to suppress shows that he did not challenge the probable cause for his arrest, and he may not raise the issue for the first time on appeal. (See People v. Williams (1999) 20 Cal.4th 119, 128.) The issues contested at hearing were, in the words of his trial counsel, were: “One, there was no permission, as we heard from Mr. Smith, to give anyone authorization to retrieve his property. Two, there was definitely no reason, once retrieving that property to search it at all.”
On the issue of consent, our examination of the record discloses substantial evidence in support of the trial court’s factual finding that Smith consented to having his personal property retrieved from his locker at Fry’s. The evidence, viewed in light of the proper standard on appeal (see, e.g., People v. Dominguez (1988) 201 Cal.App.3d 345, 353 (Dominguez) [the trial court judges credibility]), establishes that Smith asked Detective Mulroney about his personal property during an interview after his arrest, and that the detective said he needed Fry’s permission to take anything out of Smith’s locker. Detective Mulroney said that, if Fry’s agreed, he would retrieve Smith’s property. When Smith said that Fry’s could release the property in his locker, Detective Mulroney directly asked, “Would it be all right if I picked it up?” and Smith answered, “Yes.” This evidence shows that Smith gave his consent to Detective Mulroney to retrieve the items in Smith’s locker.
Smith next contends the evidence does not show that even if he gave consent to retrieve the items from his locker, he did not grant permission to Detective Mulroney to examine the items retrieved from his locker. We disagree. The content of the items retrieved from his locker inevitably would have been discovered during booking. As the Supreme Court explained in People v. Clark (1992) 3 Cal.4th 41, opening a wallet and reading the papers in the wallet is within the permissible parameters of an inventory search because it is “necessary to read the papers in the wallet in order to properly identify and inventory them.” (Id. at pp. 142-143.) In Smith’s current case, we have less of an invasion of any protected interest because all that occurred was the reading of a bunch of loose papers, which would have been permissible incident to his booking.
Dominguez is also instructive. There, the defendant emptied his pockets of several folded newspaper clippings and a tube of heavy manila paper tied with a ribbon. When the county jail’s booking clerk was inventorying the items, a detective picked up the roll, unrolled it, and discovered that it was a written confession. The trial court denied the defendant’s motion to suppress his confession. The Court of Appeal affirmed the lower court’s order, ruling that the permissible scope of an inventory search is broad, and may include an item-by-item examination of everything in a person’s pockets, including looking into his wallet or containers on his or her person, and that a reasonable inventory search may include reading and identifying any document in order to properly inventory it. (Dominguez, supra, 201 Cal.App.3d at pp. 350-352.) Again, Smith’s case involves acts less intrusive than were found permissible in Dominguez.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J. GRIMES, J.