P. v. Estrada



















Filed 2/7/13 P. v. Estrada CA2/3

>

>

>

>

>

>

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

THE PEOPLE, Plaintiff and Respondent, v. Eddie Estrada, Defendant and Appellant.

B243274 (Los Angeles County Super. Ct. No. BA396662)

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



Richard L.
Fitzer, under appointment by
the Court of Appeal, for Defendant and Appellant.



No
appearance for Plaintiff and Respondent.



Defendant
and appellant Eddie Estrada appeals from the judgment entered following his
plea of no contest to possession of
concentrated cannabis (Health & Saf. Code, § 11357, subd. (c)). The trial court suspended imposition of
sentence and placed Estrada on formal probation for a period of three
years. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.href="#_ftn1" name="_ftnref1" title="">[1]

On May 1, 2012, Los Angeles Police
Officer Danny Monterroso was assigned to a parole and probation compliance
unit. At that time he supervised
approximately 60 individuals on “supervised release” programs who had “been
brought down from parole . . . to probation.” Under statutory authority, Assembly Bill
No. 109, Monterroso was required to have “face-to-face contact” with each
of his clients approximately every 30 days. An individual named Edward Diaz was one of
Monterroso’s probationers.

At
approximately 3:30 in the afternoon
on April 17, 2012,
Monterroso went to a residence at 922 West 82nd Street
to meet with Diaz. When Monterroso, who
was accompanied by his partner, Officer Davis, and a probation officer, Renee
Brown, pulled up in front of the house in an unmarked car, he saw Diaz “behind
his gate in the front yard.” Monterroso,
who was in uniform, made eye contact with Diaz who, accompanied by a companion,
ran into the house.href="#_ftn2" name="_ftnref2"
title="">[2] Monterroso, his partner and the probation
officer got out of their vehicle and ran after Diaz. Monterroso’s partner and the probation
officer entered the house through the open front door and detained Diaz in the
living room. Monterroso went around the
house and entered through the back door, which was “wide open.” As he walked into the house, Monterroso
“smelled an odor of marijuana.”



Diaz’s wife
and two children were in the living room with Diaz, but there was no sign of
the companion with whom he had run inside.
When Monterroso asked Diaz where his companion had gone, Diaz was
uncooperative and did not answer. Diaz’s
wife then pointed to the bathroom, which was approximately 10 feet away, and
indicated that he had gone in there.
Monterroso and his partner called out to the individual in the bathroom
and told him to come out. The individual
complied with the order and Monterroso
then detained the “subject” in the hallway until he was able to get assistance
from additional officers.href="#_ftn3"
name="_ftnref3" title="">[3]

Once
additional officers arrived, they moved Diaz, his companion, his wife and their
two children “outside the front door.”
Although Diaz’s wife told the officers there was no one else in the
house, they “systematically searched the rest of the residence to make sure no
one else was hiding.” As they searched,
Monterroso “could still smell the strong [odor] of marijuana and . . . could
hear a loud noise coming from the [room] down the hall.” When he reached the room, the officers could
see that the door was “partially cracked.”
It was not “locked or secured.” Monterroso opened the door and saw
Estrada sitting on the bed approximately two feet in front of a television
which was turned up so that it was quite loud.
Estrada indicated that he lived at the house and that the room the
officers had just entered was his room.
He was seated on the bed “in the process of tying a clear plastic bindle
of marijuana type substance.” In
addition to the one he was tying, there were approximately three other bindles
on the bed and 34 bindles in a box. A
larger plastic bag containing what appeared to be marijuana was on the
television stand, next to a digital scale.
Finally, there were empty baggies “all over the room.”

For purposes
of the preliminary hearing only, it was stipulated that “the items booked into
evidence . . . [had been] analyzed by a certified criminalist by the name of
M. Chance” and “[i]f called, duly sworn and testified, Ms. Chance would
indicate that the total net weight of the item was 19.59 grams. The contents of the six bags had a net weight
of 4.1 grams containing marijuana. And
item two had a total net weight of 8.35 grams.” It was further stipulated that, “if called,
duly sworn and testified, Detective Olivier would indicate that[,] based on his
training, experience and expertise[,] . . . the marijuana was
possessed for the purpose of sales[.]”

2. Procedural
history.

After it
was presented at the preliminary hearing,
Estrada’s counsel made a motion to suppress the evidence of marijuana found in
Estrada’s room. Counsel asserted that,
during a parole or probationary search, the officer is not permitted to search
the private belongings of someone living with the parolee “unless there’s joint
control.” With regard to Estrada, the
officers essentially conducted a search of his room, or “his home,” without a
warrant. To search without a warrant,
the officers needed “both probable cause and exigent circumstances.” Here, the officer could not articulate any
exigent circumstances. The sound of a
loud television and the smell of marijuana are “not enough for probable cause.” Nothing in these circumstances created a
danger to the officers. There was
“definitely no evidence of a violent crime.”
Once the probationers had been detained, and the officers had not seen
any new evidence or articulated any new reason why they were in danger, there
was no “need to do a protective sweep for their safety.”

The People
argued that, in the present matter, they not only had the prior approval of the
probation officer, but the probation officer was present when they searched the
house. Moreover, “the scope of the
search [could properly] include the probationer’s property, vehicle, and
residence.” The prosecutor continued,
“And I think in this case, the officer has articulated reasons to justify a
safety sweep based [not just on] Mr. Diaz’ action[s], but [those of the
second probationer as well.]” When Diaz
first saw the uniformed officer, both he and the second probationer ran. The prosecutor also noted that the police
officers did not complete the search of the house without “back up.”

Following a
short recess, the trial court indicated that, “taking into consideration the
fact that the officer[s] seemed to feel it was necessary to delay searching the
residence [until] back up [units had arrived,]” the court believed “that the
officer felt that a protective sweep was necessary under the circumstances.” The trial court found that “the officer was
justified in conducting a limited protective sweep of the residence. And therefore, was acting lawfully in opening
Mr. Estrada’s bedroom door. [¶] Once he did that, [the trial court believed
there was no] dispute that what he saw in plain view was enough to justify the
seizure of that evidence.” The court,
therefore, denied Estrada’s motion to suppress evidence. Believing that the evidence which had been presented
was sufficient to support the belief that Estrada had possessed marijuana for
sale, the court determined Estrada
should be held to answer to the charge.
He was, however, “continued on his own recognizance.”

On May 15, 2012, an information was
filed in which it was charged that, on or about April 17, 2012, Estrada committed the crime of possession
of marijuana for sale in violation of Health and Safety Code section 11359, a
felony. At a hearing held that same day,
Estrada entered a plea of not guilty to the charge. The next proceedings in the matter were held
on July 25, 2012. At that time, Estrada indicated that he
wished to take advantage of the People’s offer of a plea to Health and Safety
Code section 11357, subdivision (c), possession of concentrated cannabis. He would serve three years on probation and
do “30 [days of] CALTRANS.” If the
Caltrans was not completed within one year, he would be required to serve 180
days in county jail. In addition, the
Caltrans service would reduce the crime to a misdemeanor and convert the
remaining probation time to “unsupervised.”

On the
district attorney’s motion, the information was amended to add as count 2 a
violation of Health and Safety Code section 11357, subdivision (c), the
possession of concentrated cannabis, a wobbler.
The prosecutor explained that Estrada would be pleading to a felony, but
that if he successfully completed his 30 days at Caltrans, the offense could be
reduced to a misdemeanor.

Estrada
waived his right to a jury or court trial, his right to cross-examine the
witnesses called to testify against him, his right to use the subpoena power of
the court to call witnesses to testify on his behalf, and the right to remain
silent, also known as the privilege against self-incrimination. He then pled “no contest” to the allegation
that he had “committed the crime of possessing concentrated cannabis in
violation of Health and Safety Code section 11357, subsection (c)[.]” Counsel joined in the plea, concurred in the
waivers and stipulated to a factual basis for the plea based, at least in part,
on the police reports.

The trial court accepted Estrada’s
plea, found “a factual basis for it” and determined that the waivers had been
knowingly, intelligently and voluntarily made.
The trial court then placed Estrada on three years formal probation,
some of the conditions of which included that he pay a $240 restitution fine
(Pen. Code, § 1202.4), pay a $40 court security fee (Pen. Code, § 1465.8, subd.
(a)), pay a $30 criminal conviction assessment (Gov. Code, § 70373), pay a $50
laboratory fee (Health & Saf. Code, § 11372.5) and register as a narcotics
offender with his local police department (Health & Saf. Code,
§ 11590). Estrada was also to “submit [his] person and property to search
or seizure at any time of the day or night by any law enforcement officer or by
[a] probation officer with or without a warrant.” The trial court then dismissed in accordance
with the plea negotiations the remaining charges and allegations.

On August 9, 2012, Estrada filed a
timely notice of appeal “based upon the denial of [his] motion to suppress
evidence made pursuant to Penal Code section 1538.5.”

>CONTENTIONS

After examination of the record,
counsel filed an opening brief which raised no issues and requested this court
to conduct an independent review of the record.

By notice filed November 1, 2012,
the clerk of this court advised Estrada to submit within 30 days any
contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received
to date.

>REVIEW ON APPEAL

We have examined the entire record
and are satisfied 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.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS











KITCHING,
J.





We concur:





CROSKEY, Acting P. J.











ALDRICH, J.