P. v. Espinoza















Filed 7/9/12 P.
v. Espinoza CA2/5

Reposted to provide correct file date; no
change to opinion text











>NOT TO BE PUBLISHED IN THE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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 FIVE




>

THE PEOPLE, Plaintiff and Respondent, v. JORGE ESPINOZA, Defendant and Appellant.

B234223 (Los Angeles County Super. Ct. No. NA087555)

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

Gary J. Ferrari, Judge. Affirmed as modified.

Richard
L. Fitzer, 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, Senior Assistant Attorney General, Chung L. Mar and
Victoria B. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

_______________









Appellant Jorge Espinoza pled no
contest, following the denial of his motion
to suppress evidence, to one count of transportation
of a controlled substance in violation of Health and Safety Code section
11352, subdivision (a), one count of possession for sale of a controlled
substance in violation of Health and Safety Code section 11351, one count of
possession of a firearm by a felon in violation of Penal Code section 12021,
subdivision (a)(1), and one count of unlawful
firearm activity in violation of Penal Code section 12021, subdivision
(c)(1).href="#_ftn1" name="_ftnref1" title="">[1] Appellant admitted that he had suffered two
prior drug convictions within the meaning of Health and Safety Code section
11370.2, subdivision (a), and one prior serious or violent felony conviction
within the meaning of the "Three Strikes" law (Pen. Code, §§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)).
The trial court sentenced appellant to eight years in state prison.

Appellant
appeals, contending that the trial court erred in denying his Penal Code
section 1538.5 motion to suppress evidence of the narcotics found in his
car. We order the abstract of judgment
corrected, as set forth in more detail in the disposition. We affirm the judgment of conviction in all
other respects.



Factshref="#_ftn2" name="_ftnref2" title="">[2]

On
December 12,
2010, Long Beach Police Department
Detectives Patrick Lyon and his partner Detective Ernie Armond were driving in
an unmarked police car in Long
Beach. The detectives were gang detectives. About 7:30 p.m., a Honda Accord caught
Detective Lyon's attention. The Honda
made a left turn without signaling, causing the car behind it to stop suddenly.

The
detectives conducted a traffic stop, checked appellant's driver's license and
learned that it was suspended. They
decided to arrest appellant and impound his car.

The
detectives conducted an inventory search
of the car. The search was primarily
conducted by Detective Lyon, but Detective Armond searched some areas which
Detective Lyon could not reach. In
particular, Detective Armond pulled up the carpeting and a piece of plastic
from the center console. There, he found
a plastic bag containing 30 individual packets of a white powdery substance
which appeared to be cocaine.



Discussion

1. Motion to suppress

Appellant
contends that the trial court erred in denying his motion to suppress the
narcotics found during the search of his car because the prosecution did not
meet its burden of proving that the warrantless search and seizure of
appellant's vehicle fell within the inventory search exception to the warrant
requirement. Specifically, he contends
that the prosecution failed to show that the detectives performed the inventory
search pursuant to a standard policy of the Long Beach Police Department
governing inventory searches. He further
contends that the detectives' testimony and actions showed that the inventory
search was merely a pretext for an investigatory search.

The standard of
review of a trial court's ruling on a motion to suppress is well
established. We defer to the trial
court's factual findings, express or implied, where supported by substantial
evidence. In determining whether, on the
facts so found, the search or seizure was reasonable under the href="http://www.mcmillanlaw.com/">Fourth Amendment, we exercise our
independent judgment. (>People v. Glaser (1995) 11
Cal.4th 354, 362.)

Any
warrantless search is unreasonable unless it falls within one of the recognized
exceptions to the warrant requirement. (>Katz v.
United States (1967) 389 U.S. 347,
357.) The burden of proving that a
search falls within one of these exceptions rests with the People. (People
v. Williams (1999) 20 Cal.4th 119, 127.)

Inventory
searches of impounded vehicles are a recognized exception to the warrant
requirement. (Colorado v. >Bertine (1987) 479 U.S. 367.) "Because of the risk that an inventory
search will be 'a ruse for a general rummaging,' . . . a valid inventory search
must adhere to a preexisting policy or practice. ([>Florida v.] Wells [(1990)] 495 U.S. [1,]
4.)" (People v. >Williams, supra, 20 Cal.4th at p. 138, italics added.) "Of course, Wells does not require a written policy . . . or a policy that
leaves no room for police discretion, but the record must at least indicate
that police were following some 'standardized criteria' or '>established routine' when they elected
to open the containers [citation]."
(Id. at p. 127, italics
added.) The burden is on the prosecution
to prove the existence of a policy, practice or routine concerning inventory
searches. (Id. at p. 138.)

Here, the trial
court found Detective Lyon credible and also found that his actions were not
motivated by a belief that appellant was carrying narcotics, guns or some other
contraband. Exercising our independent
judgment, we agree that this search was permissible.

Detective
Lyon
testified that his department had policies for conducting inventory searches,
and that that policy was designed to produce an inventory. When asked what areas he was allowed to
search or not allowed to search, Detective Lyon replied: "There is that we search the complete
vehicle." Detective Lyon was also asked if the area
under the center console was an area that was commonly searched during his
inventory searches, and he replied that it was.
He explained that he searched that area because in his experience it was
a common area for people to hide guns, narcotics and other contraband. On redirect, Detective Lyon testified that
his actions in searching appellant's car was not "in any way different or
unique than other inventory searches" that he conducted. He explained:
"[U]ltimately I search all the vehicles in the same way."

Detective
Lyon's testimony is more than sufficient to show that he and his partner,
followed a "preexisting . . . practice" and "established
routine" in searching appellant's car.
Further, Detective Lyon's testimony can be understood as stating that his
department's policy was "that we search the complete vehicle." He would therefore be required by policy to
search the center console area. (See >United States v. Bowhay (9th Cir. 1993)
992 F.2d 229, 231 [upholding inventory search during which officer opened
closed bag because "the department's policy was to search everything; the
officer had no discretion"].)

Appellant
also contends that Detective Lyon's testimony and actions showed that he had an
investigatory motive in searching the car and the inventory search was only a
pretext to search for evidence of other crimes.
He contends that this rendered the search invalid. We do not agree.

Detective Lyon
acknowledged that he conducted an inventory search of appellant's car for two
reasons: "One is for personal
property of the driver, to make a correct inventory search of it. That way we're not accused of taking
anything. And, number two, is to find
anything, illegal contraband, guns or anything like that."

A
search for contraband serves to protect police and others from potentially
dangerous items which might be in the car, and is a legitimate purpose of
inventory searches. (>South Dakota v. Opperman (1976) 428 U.S.
364, 368-369.) Thus, Detective Lyon's
statement that he looked for contraband does not clearly indicate that he was
motivated by an improper investigative purpose, that is that he was looking for
evidence of crimes by appellant (as opposed to looking for contraband for
safety reasons). Similarly, the fact
that Detective Lyon searched the center console area because he knew it was an
area where people store contraband does not show an investigatory purpose,
particularly since Detective Lyon testified that he searches every car the same
way. (See United States v. >Edwards (5th Cir. 1978) 577 F.2d 883,
894-895 [it was reasonable for officer to lift carpet flap and look underneath
when conducting inventory search of car.)

Appellant also
points to the detectives' actions in taking inventory to support his claim that
they had an investigatory purpose and the inventory was just a sham. Specifically, he claims that there were no
personal items listed on the inventory report prepared by the two
detectives. The form used by the
detectives had a checklist on it, and Detective Lyon wrote "none" by
the listings for cell phones and firearms.
He testified that if there had been any other personal items, he would
have marked them on the form. There was
no evidence that the car in fact contained personal items. Thus, appellant has not shown that the form
was suspiciously incomplete.

Appellant also
points out that the inventory report was not filled out until after the
inventory was complete, and contends that if the detectives were truly
interested in creating an inventory, they would have filled out the form during
the search, not after its conclusion. We
see nothing suspicious in this. There
were two detectives at the stop. It might
not have been comfortable or convenient for the searching officer to fill out a
form while he was inside the car. The
second officer would need to keep watch on appellant, and probably on the
surroundings as well, and it would have been distracting for him to fill out
the form for his partner.

Assuming
that Detective Lyon did have an investigatory purpose, that would not
invalidate the inventory search.
Appellant has not cited, and we are not aware of, any cases which hold
that the inventory exception to the search warrant requirement is not valid if
the searching officers had an investigatory as well as an inventory motive to
search the vehicle. The Fifth and Ninth
Circuit Court of Appeals have held to the contrary, finding that an
investigatory motive does not invalidate an otherwise legitimate inventory
search. (United States v. >Bowhay, supra, 992 F.2d at pp. 230-231; United
States v. Orozco (5th Cir. 1983) 715 F.2d 158, 161; see also >Colorado v. Bertine (1987) 479
U.S. 367, 371 [no showing that the police, who were following standardized
procedures, acted in bad faith or for the sole purpose of investigation].)

Relying on >People v. Torres (2010) 188 Cal.App.4th
775, appellant contends that because justification for an impound search is
dependent on the community caretaking function, the officer's subjective intent
comes into play in determining the reasonableness of the search during an
impound. Appellant skips over a key part
of Torres. The Court in Torres stated: "The
relevant question is whether the impounding
was subjectively motivated by an improper investigatory purpose." (Id.
at p. 791, italics added.) This is
because "'[a]n inventory search conducted pursuant to an unreasonable
impound is itself unreasonable.'
[Citation.]" (>Id. at p. 786.)

In his opening
brief, appellant stated that he was "not challenging the decision to
impound the car." >Torres is of no use to appellant once he
concedes that the impound was proper.

Assuming for the
sake of argument that appellant is in fact questioning the subjective
motivation of the officers in impounding his car, Torres would still be of no assistance to him.

The Court in >Torres held that the impounding of a
vehicle driven by an unlicensed driver must be supported by some community
caretaking function other than temporarily depriving the driver of the use of
the vehicle, or suspicion of evidence of criminal activity. (People
v. Torres, supra, 188
Cal.App.4th at pp. 787, 792.)

Appellant's
vehicle was impounded pursuant to Vehicle Code section 14602.6, because he was
driving with a suspended license. The
primary purpose of such an impound is to protect the lives and property of
other people from the harm caused by unlicensed drivers. (Alviso
v. Sonoma County Sheriff's Department (2010) 186 Cal.App.4th 198,
206.) Vehicle Code section 14602.6
authorizes impounding a vehicle for up to 30 days. Thus, there is a community caretaking
function inherent in many, if not most, Vehicle Code section 14602.6
impounds.

Further, as the
Ninth Circuit has explained, "[a]n impoundment may be proper under the
community caretaking doctrine if the driver's violation of a vehicle regulation
prevents the driver from lawfully operating the vehicle, and also if it is
necessary to remove the vehicle from an exposed or public location.
[Citations.] The violation of a
traffic regulation justifies impoundment of a vehicle if the driver is unable
to remove the vehicle from a public
location without continuing its illegal operation." (Miranda
v. City of Cornelius (9th Cir. 2005) 429 F.3d 858, 865, italics added,
cited with approval in People >v. Torres,
supra, 188 Cal.App.4th at p. 792.) That was the situation here.



2. Abstract of judgment

Appellant
states in a footnote to his opening brief
that he requested the trial court to strike rather than stay the Health and
Safety Code section 11370.2 enhancement, and that the trial court granted this
request on September 20, 2011. There is
no documentation from the superior court reflecting this ruling. Accordingly, to the extent that appellant is
requesting that we direct the trial court to prepare an amended abstract of
judgment reflecting the trial court's ruling, that request is denied.

Respondent
requests that we order the abstract of judgment corrected to reflect the
imposition of a $30 criminal conviction assessment on each count, pursuant to
Government Code section 70373. That
request is granted.



Disposition

The abstract of
judgment is ordered corrected to reflect the imposition of a $30 criminal
conviction assessment on each count, pursuant to Government Code section
70373. The clerk of the superior court
is directed to prepare an amended abstract of judgment to reflect that
correction. The judgment is affirmed in
all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







ARMSTRONG,
J.





We concur:







TURNER, P. J.







MOSK, J.