Filed 5/29/13 P. v. Molina
CA2/2
TO BE PUBLISHED IN THE 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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
GUSTAVO
ANTOLIN MOLINA,
Defendant and Appellant.
B241907
(Los Angeles County
Super. Ct. No. MA053836)
APPEAL from a judgment of the Superior Court of
County. Kathleen
Blanchard, Judge. Affirmed.
Seymour I. Amster, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Gustavo Antolin Molina
(defendant) appeals from his conviction of transporting marijuana, challenging
the denial of his motion to suppress
evidence. We conclude the trial court
did not err in denying the motion and we affirm the judgment.
BACKGROUND
Procedural history
Defendant
was charged in count 1 with the sale or transportation of marijuana in
violation of Health and Safety Code section 11360, subdivision (a), and in
count 2 with possession of marijuana for sale in violation of Health and Safety
Code section 11359. After the trial
court denied his motion to suppress evidence filed pursuant to Penal Code
section 1538.5, defendant entered into a plea agreement under the terms of
which he pled no contest to count 1 and count 2 was dismissed. On May
29, 2012, the trial court suspended imposition of sentence, placed
defendant on formal probation for three years, with conditions that included
365 days in custody with credit totaling 365 days, and payment of mandatory
fines and fees. Defendant filed a timely
notice of appeal.
The suppression hearing
Los Angeles County Sheriff’s Deputy Michael Rose
testified that on the evening of June
3, 2011, while he was in a marked patrol car with his partner,
Deputy Edwards, he saw defendant make a turn without signaling and then drive
on the wrong side of the road in violation of the Vehicle Code. The deputies stopped defendant’s car and both
deputies approached. Defendant told them
he did not have his driver’s license with him when asked. Deputy Rose smelled an odor of marijuana
coming from inside the car so looked inside and saw a glass jar on the floor
behind the driver’s seat. The jar
contained green flakes, seeds, and buds, which appeared to Deputy Rose to be
marijuana residue.
Deputy
Edwards then asked defendant whether he had anything illegal on him. Defendant replied he had marijuana in his
pocket, so Deputy Edwards asked him to step out of the car. After defendant complied, Deputy Edwards removed
a bag of marijuana from defendant’s pocket and detained him. Deputy Rose escorted defendant to the patrol
car. Defendant looked very nervous and
began sweating profusely despite the cold weather. Deputy Rose asked defendant whether there was
anything illegal in the car, and although defendant said “no,†he gave the
deputy permission to search the car. The
car was searched for any drug-related evidence, including the cell phone found
on the driver’s seat. The phone
contained several text messages regarding marijuana sales.
Defendant
was seated in the back of the patrol car and had not been informed of his
to search the cell phone.
Defendant
called no witnesses. The trial court
found defendant’s consent to search his car was voluntary and that the deputies
properly relied on his consent. The
court also found the deputies had probable cause to search the car once they
observed marijuana residue in the jar on the floor. When they found marijuana on defendant’s
person, the deputies also had probable cause to arrest defendant for a
violation of Health and Safety Code section 11360, transporting marijuana. The court concluded the search of the car was
justified as incident to that lawful arrest.
The court denied the motion to suppress evidence.
DISCUSSION
Defendant contends that the warrantless search of his car
was unlawful because he was in custody when he gave consent and had not been
informed of his Miranda rights. He also contends that the search could not be
justified as incident to a lawful arrest.
Defendant does not argue the arrest was unlawful; nor does he challenge
the finding that the deputies had probable cause to search the car once they
observed marijuana residue in the jar.
“It is
well settled under the Fourth and
Fourteenth Amendments that a search conducted without a warrant issued upon
probable cause is ‘per se
unreasonable . . . subject only to a few specifically established and
well-delineated exceptions.’ [Citations.]†(Schneckloth
v. Bustamonte (1973) 412 U.S. 218, 219 (Schneckloth).) One such exception allows the police to
“search an automobile and the containers within it where they have probable
cause to believe contraband or evidence is contained.†(California
v. Acevedo (1991) 500 U.S. 565, 580.)
Here, after defendant had been lawfully stopped for traffic violations,
Deputy Rose not only saw marijuana residue but also detected the odor of
marijuana coming from inside the car.
The deputies thus had probable cause to search the car. (See People
v. Strasburg (2007) 148
Cal.App.4th 1052, 1058-1059; People v.
Dey (2000) 84 Cal.App.4th 1318, 1320-1322.)
And they were permitted to search every part of the car. (United
States v. Ross (1982) 456 U.S. 798, 800, 825.)
We
conclude the search of defendant’s car was lawful. Although we need not reach defendant’s
remaining arguments regarding the validity of the search, we agree with
respondent that they are without merit.
Another “specifically established exception[] to the
requirements of both a warrant and probable cause is a search that is conducted
pursuant to consent. [Citations.]†(Schneckloth,
supra, 412 U.S. at p. 219.) “The voluntariness of consent is a question
of fact to be determined from the totality of circumstances. [Citations.]
If the validity of a consent is challenged, the prosecution must
voluntarily given -- i.e., ‘that it was [not] coerced by threats or force, or
granted only in submission to a claim of lawful authority.’ [Citations.]â€
(People v. Boyer (2006) 38
Cal.4th 412, 445-446, quoting Schneckloth, supra, at p. 227.) “‘“On
appeal all presumptions favor proper exercise of that power, and the trial
court’s findings -- whether express or implied -- must be upheld if supported
by substantial evidence.â€â€™ [Citation.]â€
(People v. Monterroso (2004)
34 Cal.4th 743, 758 (Monterroso).)
A
consent is not involuntary merely because the defendant was not told he could
refuse or because he was under lawful arrest but not given Miranda warnings. (
v. James (1977) 19 Cal.3d 99, 114-116.)
Where there is no evidence of overt or implied threat of force, as in
this case, a request to search implies the ability to refuse. (Monterroso,
at pp. 758-759.) The absence of a
warning is merely one factor to consider.
Other factors indicating involuntary consent include the defendant’s
youth or low intelligence, whether questioning was repeated or prolonged, and
any sleep or food deprivation. (
Such factors were absent here.
Defendant was cooperative throughout the events; there were only two
deputies; defendant was asked, not ordered, to step out of his car and go to
the patrol car; and although he was confined, defendant was not handcuffed when
the deputies sought his consent to search the car. We conclude that substantial evidence
supported the trial court’s finding that the consent was voluntary.
Defendant
relies on Chimel v. California (1969)
395 U.S. 752 (Chimel), and
arrest the police may not search a car’s interior after the occupants have been
secured. In fact, as respondent points
out, the Supreme Court held that “circumstances unique to the automobile
context justify a search incident to arrest when it is reasonable to believe
that evidence of the offense of arrest might be found in the vehicle.†(Gant,
at p. 335.) The court also held this was
consistent with its holding in Chimel. (Gant,
at p. 335.) Thus an officer is permitted
“to conduct a vehicle search [either]
when an arrestee is within reaching distance of the vehicle
contains evidence of the offense of arrest.†(Id.
at p. 346, italics added.)
Defendant
does not challenge the trial court’s finding that the deputies lawfully
arrested defendant on suspicion of transporting marijuana in violation of
Health and Safety Code section 11360. As
Deputy Rose both saw marijuana residue and smelled the odor of marijuana in the
car, it was reasonable to believe the car contained evidence of the offense of
transporting marijuana. The search for
evidence of that crime was thus incident to a lawful arrest.
We
conclude that the trial court’s denial of defendant’s motion to suppress
evidence was not error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
___________________________,
J.
CHAVEZ
We concur:
_____________________________, Acting P. J.
ASHMANN-GERST
_____________________________, J.*
FERNS
Miranda v. Arizona (1966) 384 U.S.
436, 444-445.
arguments are disjointed and unclear, and he has failed to summarize any of his
points in a heading or subheading, as required by California Rules of Court,
rules 8.360(a) and 8.204(a)(1)(C).
