Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA099292, Beverly Reid O’Connelly, Judge.
Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Phillip Dewayne Walker (Walker) appeals from the judgment entered following his plea of guilty to possession for sale of cocaine base (Health & Saf. Code, § 11351.5). The trial court sentenced Walker to three years in prison. We affirm the judgment.
KLEIN, P. J.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the transcripts of the motion to suppress evidence and the preliminary hearing.
At approximately 3:15 p.m. on January 26, 2007, Los Angeles Deputy Sheriff Kris Masson (Masson) was in uniform and on patrol in a marked car when he and his partner, Deputy Delgadillo, received a call indicating an individual in a red shirt and tan pants was selling narcotics from a white car at 8617 Hickory Street in Los Angeles. Masson drove to the address and observed Walker dressed in a red shirt and tan pants. Walker, in the company of three men holding beer cans, was sitting in a chair on the sidewalk smoking what appeared to be a cigar. A white car was parked directly across the street in front of a driveway.
As Masson and Delgadillo got out of their patrol car and approached the group of men, Walker threw his cigar to the ground. As Masson got closer to Walker, he could smell the odor of marijuana coming from the cigar.
Masson and Delgadillo detained Walker and his three companions. Masson recovered the cigar and determined it was wrapped with a green leafy substance which appeared to be marijuana. Masson placed Walker under arrest and, during a search, discovered in Walker’s pockets a wallet containing $381 in bills of multiple denominations, a set of keys and, in his right front pants pocket, two small, plastic zip-lock baggies containing what was later determined to be a total of approximately 2.95 grams of marijuana. After searching Walker, Masson and Delgadillo placed the three men who had been with Walker under arrest for drinking in public.
At the suppression hearing, the parties stipulated that the green leafy substance was marijuana.
The deputies made contact with the woman who lived in the house whose driveway was being blocked by the white car. The woman, Olga Martinez, told the officers the car did not belong to her and that she wanted it moved. Masson and Delgadillo, in accordance with Sheriff’s Department policy, decided to have the vehicle towed.
Masson asked Walker and his companions if the car belonged to any of them. Walker, who was not the registered owner of the car, nevertheless stated the key to the car was on his key ring. In addition, Walker indicated he wished to get a black bag containing personal items from the trunk of the car. Walker stated he was not referring to the plastic bag, but to the other black bag.
Using the key obtained from Walker, the deputies conducted an inventory search of the car. In the trunk were two black bags, one of which was plastic. Inside the plastic bag Masson discovered what was later determined to be approximately 40.1 grams of loose marijuana, two baggies containing a total of approximately 2.68 grams of marijuana, approximately 3.94 grams of a solid substance containing cocaine base, razor blades and numerous empty baggies. In the other black bag the deputies found miscellaneous personal items in addition to several small, zip-lock baggies and a razor blade.
Walker and the three men arrested for drinking in public were transported to the sheriff’s station. There, Masson spoke with one of Walker’s companions, Michael Sims (Sims). After waiving his Miranda rights, Sims told Masson that “he had witnessed Mr. Walker selling marijuana out of the trunk of the vehicle. He said that a customer would arrive, . . . [and] Mr. Walker would tell them to wait. He would go to the trunk of the vehicle, bring marijuana back and sell [the customer] that marijuana.”
Miranda v. Arizona (1966) 384 U.S. 436.
2. Procedural History.
On February 23, 2007, an information was filed alleging in count one that Walker possessed for sale cocaine base in violation of Health and Safety Code section 11351.5, and in count two that he possessed for sale marijuana in violation of Health and Safety Code section 11359. It was further alleged pursuant to Penal Code sections 667, subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the “Three Strikes” law, that Walker had suffered a prior conviction for robbery in violation of Penal Code section 211.
Walker’s motion to suppress evidence was heard on March 29, 2007. After hearing testimony and argument by the parties, the trial court, relying on Atwater v. City of Lago Vista (2001) 532 U.S. 318 (Atwater) and People v. McKay (2002) 27 Cal.4th 601 (McKay), denied the motion. The court determined that, in view of the court’s holding in Atwater and in McKay, Walker’s arrest had been valid. Since the arrest was valid, the officer’s were entitled to search Walker and, subsequently, perform an inventory search of the car. With regard to the argument that the contents of the trunk of the car would have inevitably been discovered in view of Sims’s statement to Masson, the trial court stated the theory was “somewhat speculative.” However, the court determined that “based on the conversation with the co-arrestee [Sims], at a later point [the deputies] could have gotten a warrant [and] . . . gone back and searched the vehicle.”
In Atwater v. City of Lago Vista, supra, 523 U.S. at p. 354, the court determined that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”
In People v. McKay, supra, 27 Cal.4th at p. 618, the court concluded “that so long as the officer has probable cause to believe that an individual has committed a criminal offense, a custodial arrest – even one effected in violation of state arrest procedures – does not violate the Fourth Amendment.”
At proceedings held on April 20, 2007, Walker entered into a negotiated plea agreement, under the terms of which he was to plead guilty to count one, possession for sale of cocaine base, with the understanding that he would be sentenced to the low term of three years in prison and that the People would dismiss count two and the alleged prior strike. After waiving his right to a jury trial, the right to confront and cross-examine the witnesses against him, the right to present a defense and the privilege against self-incrimination, Walker pleaded guilty to possession for sale of cocaine base. The trial court then granted the People’s motion to dismiss the remaining counts and allegations.
The trial court sentenced Walker to the low term of three years in prison. Walker was awarded presentence custody credit for 85 days actually served and 42 days of good time/work time, for a total of 127 days. The court ordered Walker to pay a $200 restitution fine, a suspended $200 parole revocation restitution fine, a $20 court security fee and a $50 lab fee.
Walker filed a timely notice of appeal from the denial of his motion to suppress evidence on April 20, 2007.
This court appointed counsel to represent Walker on appeal on June 26, 2007.
CONTENTIONS
After examination of the record, Walker’s appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice dated October 9, 2007, the clerk of this court advised Walker to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. In a supplemental brief filed on October 15, 2007, Walker indicated that “[his] witness,” Olga Martinez, had been present in court on April 17, 2007. According to Walker, Martinez spoke to Walker’s counsel and informed him that the white car had not been blocking her driveway and, accordingly, the police had had no probable cause to search the vehicle. Walker further contended Masson “lie[d] in court to make [him]self look good.” On October 25, 2007, Walker filed a second supplemental brief in which he asserted that, since the police did not have a written statement from Sims and Sims did not testify against him, the police must have fabricated Sims’s statement. Walker again asserted Masson lied at the hearing held on the motion to suppress evidence and that, accordingly, the case against him should have been dismissed or his prison time reduced since there was no valid evidence he was selling cocaine.
DISCUSSION
Walker first contends “[his] witness,” Olga Martinez (Martinez), was present in court on April 17, 2007, and was apparently ready to testify that the white car was not blocking her driveway. However, the minute order from proceedings held on April 17 indicates the trial court ordered Martinez to appear without further order or subpoena on April 24, 2007, the date set for trial. In the interim, on April 20, 2007, Walker chose to enter into a negotiated plea agreement and pleaded guilty to possession of cocaine base. Martinez’s failure to testify was the result of Walker’s choice to enter a plea rather than go to trial. It had nothing to do with Masson’s testimony at the preliminary hearing or the motion to suppress evidence.
Walker contends Masson lied at the motion to suppress evidence to make “[him]self look good.” In particular, Walker asserts the deputy fabricated Sims’s statement. “ ‘ “A proceeding under [Penal Code] section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the superior court sitting as a finder of fact.” [Citation.]’ [Citation.] (Italics added.) In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence. The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution. Although that issue is a question of law, the trial court’s conclusion on the point should not lightly be challenged by appeal or by petition for extraordinary writ. Of course, if such review is nevertheless sought, it becomes the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.” (People v. Lawler (1973) 9 Cal.3d 156, 160 (fn. omitted); see People v. Sun (2007) 148 Cal.App.4th 374, 381.)
Here, the trial court found Masson to be a credible witness and nothing in the papers submitted by Walker support a contrary conclusion. Accordingly, substantial evidence supports the trial court’s determination the search of the car was reasonable.
APPELLATE REVIEW
We have examined the entire record and are satisfied Walker’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J. KITCHING, J.