P. v. Glaser

Filed 11/28/07 P. v. Glaser CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Glenn)

----

After his motion to suppress was denied, defendant Ronald Dean Glaser pled no contest to possession of methamphetamine for the purpose of sale (Health & Saf. Code, 11378; undesignated statutory references are to the Health and Safety Code). Sentenced to 10 years in state prison, he now appeals, contending the trial court erred in denying the suppression motion, sentencing defendant to the upper term, and refusing to strike any of the alleged enhancements.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

On October 28, 2005, while on duty, City of Colusa Police Officer Terry Baker spotted a black Honda Civic parked on the side of the road near a residence that Officer Baker testified is known within the county to be a drug residence.^[2] The Civic was facing oncoming traffic with its headlights on. Officer Baker pulled over and stopped his patrol car about a quarter of a mile behind the Civic to observe. Shortly thereafter, the driver of the Civic (later identified as defendant) drove away.

Officer Baker followed defendant and realized he could not read the Civics license plate from 50 feet, as required by the Vehicle Code. (Veh. Code, 24601.)^[3] In fact, there was an acrylic cover on the license plate that obscured the light, rendering the plate illegible until Officer Baker was only one or two car lengths behind defendant.

Once Officer Baker was able to read the license plate, he called the dispatcher, gave her the license plate number, and told her he was making a traffic stop. Officer Baker pulled defendant over and approached the car, illuminating the cars interior with his flashlight. Officer Baker told defendant that he pulled him over because of a defective license plate light. Officer Baker asked to see defendants identification, which defendant produced. He then asked if defendant was on probation or parole, and defendant said he was not.

While talking to defendant, Officer Baker observed that defendant seemed nervous. Defendant would not make eye contact with Officer Baker, and defendants pupils were constricted even though it was dark outside. Based on his education and experience, Officer Baker suspected defendant might be under the influence of an illegal drug.^[4] He asked defendant if he was on any illegal drugs at that time. Defendant said he was not currently using, but he had been arrested for drugs years ago.

Continuing with his investigation, Officer Baker asked defendant if he could search him. Defendant replied: Yes, you can.^[5] Thus, with defendants consent, Officer Baker patted down defendant.

Soon, additional police officers arrived and Officer Baker asked defendant for permission to search the car. Defendant consented to this search as well.^[6] While Officer Baker was searching the passenger compartment of the car, the other officers conducted a field sobriety test on defendant.^[7]

Finding nothing in the passenger compartment, Officer Baker removed the keys from the ignition and opened the trunk. Inside the trunk, Officer Baker saw a Brinks safe. He took one of the keys from the same key ring he had removed from the ignition and put it into the safes keyhole. Defendant immediately told Officer Baker to stop the search. Officer Baker stopped searching but his fellow officer, Todd James, who has prior experience with detecting methamphetamine, told Officer Baker that he smelled a chemical odor that was consistent with methamphetamine coming from the right side of the trunk, near the safe. Officer Baker proceeded to open the safe without defendants consent.

Inside the safe, Officer Baker found two hypodermic syringes, a glass smoking pipe commonly used for smoking methamphetamine, [] eight plastic wraps containing a crystal substance [he] believed to be methamphetamine,^[8]and a digital gram scale. Defendant was immediately arrested for possession of suspected methamphetamine and drug paraphernalia.

As Officer Baker was putting defendant in the back of the patrol car, defendant stated that he wanted to assist TAGMET^[[9]]by purchasing drugs off of people . . . . After discussing it with his fellow officers and his sergeant, Officer Baker released defendant with charges pending. He never wrote defendant a traffic citation.

Prior to trial, defendant filed a Penal Code section 1538.5 motion to suppress the evidence found as a result of the search on October 28, 2005. That motion was initially heard in conjunction with the preliminary hearing. Defendants motion was denied. Later, defendant pled not guilty and renewed his motion to suppress in superior court pursuant to Penal Code section 1538.5, subdivision (i). Defendants renewed motion to suppress was heard by the same judge who served as the magistrate judge at the preliminary hearing.

At the hearing on his renewed motion to suppress, defendant argued: The withdrawal of the consent about the search of the car at the point just prior to the safe being opened was never addressed by this Court and there was no finding. The court clarified its prior ruling: [M]y ruling was not very artful, but I found that there was consent and I found that that consent was never -- based upon [defendants] own testimony, really, was never effectively withdrawn.

Defendant subsequently pled no contest to possession of methamphetamine for the purpose of sale, along with the enhancements for his prior convictions ( 11370.2, subd. (c)) and his prior prison terms (Pen. Code, 667.5) in exchange for a 10-year cap on his prison sentence. Consistent with his plea, the trial court sentenced defendant to an aggregate term of 10 years in state prison, comprised of the upper term of three years, an additional six years for his prior convictions, and another year for one of his prior prison terms. The court executed but stayed imposition of another three-year enhancement for defendants prior convictions, and an additional two-year enhancement for defendants prior prison terms.

On appeal, defendant contends the trial court erred in denying his motion to suppress. Defendant argues: (1) the initial detention was unlawful; (2) the detention was unduly prolonged; (3) his consent was tainted by the unlawful detention; (4) any consent he gave was later withdrawn; and (5) Officer Baker lacked probable cause to search the safe without defendants consent.^[10] Defendant further argues the trial court abused its discretion by imposing the upper term for his conviction and not striking any of the enhancements. We affirm the courts judgment and sentence.

DISCUSSION

I

Motion to Suppress

Under [Penal Code] section 1538.5, subdivision (i), where a defendant unsuccessfully moves to suppress at the preliminary hearing, the motion may be renewed at a special hearing in the superior court. At such a special hearing, and where, as here, the evidence is limited to the preliminary hearing transcript, the superior court is bound by the factual findings of the magistrate and, in effect, becomes a reviewing court drawing all inferences in favor of the magistrates findings, where they are supported by substantial evidence. [Citations.]

On appeal, we do not review the findings of the superior court since it acts as a reviewing, and not a fact-finding, court. Rather, the appellate court disregards the findings of the trial court and reviews the determination of the magistrate who ruled on the motion to suppress. [Citation.] In doing so, all presumptions are drawn in favor of the factual determinations of the [magistrate] and the appellate court must uphold the [magistrates] expressed or implied findings if they are supported by substantial evidence. (People v. Snead (1991) 1 Cal.App.4th 380, 383-384, fn. omitted.)

In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

A. The Initial Detention Was Lawful

Defendant first contends the trial court erred in finding the initial detention was lawful. We disagree. An officer with a reasonable suspicion that a motorist has committed a traffic violation may stop the vehicle for investigation. (See People v. Rodriguez (2006) 143 Cal.App.4th 1137, 1148.) Here, Officer Baker testified that defendants license plate was not sufficiently lit, making it illegible from 50 feet in violation of Vehicle Code section 24601. The trial court found Officer Bakers testimony credible. There is substantial evidence to support the trial courts ruling the initial stop was lawful.

B. The Detention Was Not Unduly Prolonged

As he did in his motion to suppress, defendant argues here the detention was unduly prolonged, and that Officer Baker should have released him as soon as Officer Baker saw defendants license plate light was working. We reject this argument as well.

Pursuant to the plain language of the statute, defendant was in violation of the Vehicle Code when Officer Baker could not read defendants license plate from 50 feet. (See Veh. Code, 24601.) It is irrelevant that Officer Baker may have later discovered the license plate light was actually working.^[11] The law requires the license plate be legible from 50 feet and it was not.

United States v. McSwain (10th Cir. 1994) 29 F.3d 558, which defendant relies on, does not change this analysis or the conclusion. In McSwain, the officer stopped the defendant in order to verify the validity of the defendants temporary registration. (Id. at p. 560.) Once the officer approached the defendants vehicle he saw the registration was, in fact, valid. (Ibid.) At that moment, the Tenth Circuit ruled, the detention should have ended because the purpose of the stop was satisfied. (Id. at p. 561.) Here, defendant remained in violation of the Vehicle Code regardless of whether and when the officer learned the license plate light was working because at 50 feet the plate was illegible. Hence, the officers further investigation was lawful and the detention was not unduly prolonged.

C. Probable Cause Existed to Search the Safe

Defendant further claims on appeal that Officer Baker lacked probable cause to search the safe once he withdrew his consent. Defendant is wrong. Hornbook law states that the Fourth Amendment to the United States Constitution permits the warrantless search of an automobile with probable cause. (See United States v. Ross (1982) 456 U.S. 798, 804-809 [72 L.Ed.2d 572, 580-584] (Ross); Carroll v. United States (1925) 267 U.S. 132, 153-154 [69 L.Ed. 543, 551-552]; People v. Chavers (1983) 33 Cal.3d 462, 467-468.) The scope of such a warrantless search is defined by the nature of the items being sought: If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. (Ross, supra, at pp. 824-825.) (People v. Strasburg (2007)148 Cal.App.4th 1052, 1059 (Strasburg).)

Officer James testified that he smelled a chemical odor that was consistent with methamphetamine coming from the right side of the trunk, near the safe, and informed Officer Baker of the same. At that point, Officer Baker no longer needed defendants consent to search the safe; he had probable cause. (See Strasburg, supra, 148 Cal.App.4th at p. 1052; see also People v. Benjamin (1999) 77 Cal.App.4th 264, 273.)

In Strasburg, supra, 148 Cal.App.4th 1052,defendant moved to suppress evidence obtained when an officer, approaching a car parked at a gas station after dark with two people inside, smelled the odor of marijuana emanating from the car. (Id. at p. 1055.) The smell of marijuana led him to investigate the driver and ultimately to a search of the car. (Id. at pp.1055-1057.) The court found [t]he operative issue is whether [the officer] had probable cause to search the defendants car at the moment he smelled the marijuana, at the outset of his encounter with defendant who was with another person in a parked car in a public parking area. (Id. at p. 1058.) The court concluded that [u]nder the facts and circumstances of this case [the officer] had probable cause to search defendants car for marijuana after he smelled the odor of marijuana. (Id. at p. 1059, citing People v. Dey (2000) 84 Cal.App.4th 1318, 1320-1322.)

Similarly, here, Officer James smelled chemicals emanating from defendants trunk, which, based on his experience, he knew to be associated with methamphetamine. That, combined with defendants admission to Officer Baker that he had previously been arrested for drugs, and Officer Bakers prior observation of defendant parked near a known drug residence, resulted in probable cause to search the safe. While the trial court did not deny defendants motion on this ground, it could have and we affirm the judgment accordingly. (See In re Baraka H. (1992) 6 Cal.App.4th 1039, 1045 [courts of appeal review the trial courts ruling, not its reasoning].)

II

Sentencing

Defendant initially appealed his sentence on the grounds that the trial court abused its discretion in sentencing him to the upper term by relying on aggravating circumstances that were not supported by the record and in refusing to strike the enhancements. Defendant did not argue the trial court erred in failing to submit the aggravating factors to a jury under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely),and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). This court requested supplemental briefing from both parties to address Cunningham and Blakely.

In his supplemental brief, defendant contends the trial courts imposition of the upper term sentence violated the rule set forth in Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856] and Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403]. We shall affirm the trial courts ruling.

A. Certificate of Probable Cause

When a defendant enters a plea of guilty or no contest, he may not challenge the validity of the plea on appeal unless he has sought, and the trial court has issued, a certificate of probable cause showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (People v. Emery (2006) 140 Cal.App.4th 560, 562; see Pen. Code, 1237.5.)

Defendants contention that imposition of the upper term sentence violated Blakely and Cunningham goes to the validity of his plea. (People v. Bobbit (2006) 138 Cal.App.4th 445, 448.) As our Supreme Court has explained, [a] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself and thus requires a certificate of probable cause. (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton).) [T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term. (Id. at p. 768.)

Of course, a prosecutor and a defendant may enter into a negotiated disposition that expressly recognizes a dispute or uncertainty about the trial courts authority to impose a specified maximum sentence . . . and preserves the defendants right to raise that issue at sentencing and on appeal. [Citation.] In that situation, the plea agreements validity and enforceability would be unaffected by the ultimate resolution of the disputed issue because each party could be understood to have expressly or impliedly accepted and assumed the risk that the issue would be resolved in the opposing partys favor. (Shelton, supra, 37 Cal.4th 759, 769.)

This court applied the foregoing reasoning in Shelton to dismiss a defendants appeal where he raised sentencing error under Blakely without preserving the issue and obtaining a certificate of probable cause. (People v. Bobbit, supra, 138 Cal.App.4th at pp. 447-448.) There, we examined the language of the plea agreement and found it did not preserve, either at sentencing or on appeal, the issue that the court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstance(s). (Id. at p. 448, fn. omitted.) Without a certificate of probable cause, the appeal [had to be] dismissed. (Ibid.)

Here, defendants written plea agreement states: My attorney has told me that if I plead guilty or no contest to the above-listed charge(s), and enhancement(s), the Court will sentence me as follows: A. Deny Probation and impose State Prison term of 10 years and ----- months. A later provision in the agreement entitled Other Terms, includes the following, handwritten provision: Prosecution has agreed to ten (10) year cap on state prison sentence. It is evident from the record that defendant agreed he could be sentenced to a maximum of 10 years when he entered into the negotiated agreement to plead no contest to the specified count along with the enhancements, in exchange for dismissal of the remaining four counts and the alleged enhancements.

At the sentencing hearing, defense counsel did not argue that the trial court lacked the authority to impose the upper term, which the probation report recommended, absent jury findings that one of the aggravating factors existed. In fact, defense counsel stated on the record that he was prepared to submit [the sentencing issue] on the probation report and request the Court follow the recommendation. (Italics added.) At the time of defendants plea and sentencing, both Blakely and People v.Black (2005) 35 Cal.4th 1238(BlackI) had been decided. The United States Supreme Court had also already granted certiorari in Cunningham. (People v. Cunningham (April 18, 2005, A103501) [nonpub. opn.], cert. granted sub nom. Cunningham v. California, Feb. 21, 2006, No. 05-6551, 546 U.S. 1169 [164 L.Ed.2d 47].) The issue was clearly pending and highly debated.

Nevertheless there was no mention of the issue before the trial court. There is simply nothing in the record suggesting the parties preserved, either at sentencing or on appeal, the issue that the court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstance(s). (People v. Bobbit, supra, 138 Cal.App.4th at p. 448, fn. omitted.) Defendant nevertheless failed to obtain a certificate of probable cause. Therefore, the appeal of his sentence must be dismissed.

B. Recidivist Facts

Even assuming defendant did not need a certificate of probable cause to assert his claim on appeal, the upper term sentence imposed is lawful under the recent California Supreme Court decision in People v. Black (2007) 41 Cal.4th 799 (Black II).

In Black II, our Supreme Court reaffirmed that the right to a jury trial does not apply to recidivist facts, such as prior convictions and convictions that are increasing in number and seriousness. (Black II, supra, 41 Cal.4th at pp. 819-820.)

The Supreme Court also held that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to a jury trial. (Id. at p. 816.)

Here, in sentencing defendant to the upper term, the trial court relied on several facts, including the fact that the defendant had been previously convicted. Based on that fact alone, defendant was eligible to receive the upper term. (Black II, supra, 41 Cal.4th at p. 816.) The courts additional factfinding does not render defendants sentence unlawful. (Ibid.)

C. Dual Use Prohibition

Defendant further argues the courts use of his prior convictions as an aggravating factor violates Penal Code section 1170, subdivision (b), which prohibits the dual use of a prior conviction as both an enhancement and an aggravating factor. (People v. Coleman (1989) 48 Cal.3d 112, 164; People v. Fernandez (1990) 226 Cal.App.3d 669, 681.) It is evident from the record, however, that the trial court appropriately used one set of convictions to enhance defendants sentence and another set as a circumstance in aggravation.

The court was not explicit regarding which of defendants prior convictions it was relying on as an aggravating circumstance. We can reasonably infer from the record, however, that the court relied on the prior convictions alleged in count II of the information, which were admitted by defendant, to add seven years to defendants sentence pursuant to section 11370.2, subdivision (c), and Penal Code section 667.5, subdivision (b). Based on this record, it is also reasonable to presume the sentence enhancements totaling five years that were executed but stayed arose from the remaining convictions alleged in count II of the information and admitted by defendant.

As catalogued in the probation report, and in the appendix of this opinion, that left at least four, and arguably six, prior convictions (which were not pleaded in this case) upon which the trial court could rely as a circumstance in aggravation. As an aggravating circumstance, three prior convictions are considered numerous. (People v. Tu (2007) 154 Cal.App.4th 735, 744.) Accordingly, we find no error.

D. Defendant Forfeited His Right to Appeal the Courts Exercise of Discretion in Sentencing Him to the Upper Term

Defendant further contends the courts decision to impose the upper term and not strike any of the alleged enhancements was based on aggravating circumstances that were not supported by the record. Defendant forfeited his right to raise this issue on appeal by failing to object at the trial court. (People v. Scott (1994) 9 Cal.4th 331, 335.)

[F]act-specific errors in the courts statement of reasons are not readily susceptible of correction on appeal. (People v. Scott, supra, 9 Cal.4th at p. 355.) Thus, complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal. (Id. at p. 356.) Provided, of course, that defendant had a meaningful opportunity to raise his objections before the trial court. (Ibid.)

Defendant does not contend he was deprived of a meaningful opportunity to raise his objections at the trial court. Indeed, the record establishes that defendant was provided a copy of the

probation report and recommendation in advance of the sentencing hearing; he was present with counsel at the sentencing hearing, and the trial court recited those factors it found to be aggravating factors on the record. In short, defendant had every opportunity to raise his objections below and he did not. Ergo, defendant has forfeited his right to raise them in this court.

E. The Trial Court Did Not Abuse Its Discretion

Even if defendant had not forfeited his right to raise this claim on appeal, the claim fails on its merits. At sentencing, the trial court recited the following factors in aggravation: (1) the amount of methamphetamine, 5.51 grams gross weight, was substantial; (2) the prior grants of probation were unsuccessful; (3) defendants prior convictions; (4) the methamphetamine found was in crystalline form; and (5) the manner in which the crime was carried out suggested professionalism and sophistication. Defendant now contends the amount of methamphetamine found in his car was not substantial, that his prior grants of probation were not a failure, and that the manner in which the crime was carried out did not suggest professionalism and sophistication.

We need not resolve whether 5.51 grams, gross weight, of methamphetamine is considered substantial, or whether using a Brinks safe to transport methamphetamine is indicia of professionalism and sophistication. Here, defendant concedes what the probation report establishes: the methamphetamine for which defendant was convicted of possessing was in crystalline

form. Penal Code section 1170.74 unambiguously states: Upon conviction of a felony violation of Section . . . 11378 . . . for an offense involving methamphetamine, the fact that the controlled substance is the crystalline form of methamphetamine shall be considered a circumstance in aggravation of the crime in imposing a term under subdivision (b) of Section 1170. (Pen. Code, 1170.74.) This factor alone supports the trial courts imposition of the upper term. (See Black II, supra, 41 Cal.4th at p. 816 [one aggravating factor alone is sufficient to impose the upper term].)

Moreover, despite being granted probation twice, given the opportunity to participate in a drug rehabilitation program under Welfare and Institutions Code section 3051, and being paroled numerous times, defendant has violated parole four times and continues to be arrested for drug-related crimes. Faced with this history, the probation officers conclusion that defendants prior performances on probation and parole were unsatisfactory, is amply supported by the record and provides a further basis for the courts imposition of the upper term.

And finally, as discussed above, the courts reliance on defendants prior convictions as an aggravating factor is the only fact needed for the court to lawfully impose the upper term. (See Black II, supra, 41 Cal.4th at pp. 816, 819-820.) Defendant does not, indeed cannot, challenge the fact that he has been previously convicted numerous times. Resentencing is not required.

disposition

The judgment and sentence are affirmed.

SIMS , J.

We concur:

SCOTLAND, P.J.

CANTIL-SAKAUYE , J.

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APPENDIX

As listed in the probation report, defendant suffered the following convictions. Only those marked with an * were pleaded in count II of the information.

^[1]The facts relating to defendants detention and subsequent arrest were derived from the transcript of the preliminary hearing where defendant submitted evidence in support of his motion to suppress, and which the parties agreed the trial court could rely on in deciding the renewed motion to suppress. No new evidence was adduced at the renewed hearing.

^[2] Defendant argues for the first time on appeal that the court improperly took judicial notice of the fact that the Skidmore residence is known in Glenn County to be a drug residence. Defendant did not raise this objection below and thus forfeits the argument on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 434, citing People v. Green (1980) 27 Cal.3d 1, 22.) Defendants argument fails in any event because although the court indicated it was taking judicial notice of the fact that the Skidmore residence was a known drug residence, the People did not request the court take judicial notice of that fact. Rather, the People presented testimony in that regard from Officer Baker, which the court apparently found credible.

^[3] Either the taillamp or a separate lamp shall be so constructed and placed as to illuminate with a white light the rear license plate during darkness and render it clearly legible from a distance of 50 feet to the rear. When the rear license plate is illuminated by a lamp other than a required taillamp, the two lamps shall be turned on or off by the same control switch at all times. (Veh. Code, 24601.)

^[4] The trial court found Officer Baker to be qualified as an expert in assessing whether someone may be under the influence of an illegal drug.

^[5] Defendant testified that he did not consent to the patdown search, but the court did not find his testimony credible on this issue and we will defer to that credibility determination. (See People v. Boyer (2006) 38 Cal.4th 412, 444.)

^[6] Again, defendant testified that he did not consent to the search of his vehicle. The court did not find defendants testimony credible in this regard either. We will defer to the trial courts credibility determination. (See People v. Boyer, supra, 38 Cal.4th at p. 444.)

^[7] Presumably, defendant passed the sobriety test as the officers later allowed defendant to drive away.

^[8] The crystal substance was tested by another officer and it all came back presumptively positive for methamphetamine.

^[9] According to the Internet at www.rbpd.org/tagmet, TAGMET is the Tehama and Glenn Methamphetamine Enforcement Team. The website indicates that TAGMET was created in 1998 to combat all forms of controlled substance trafficking and manufacturing in Tehama and Glenn Counties through an aggressive multi-jurisdictional law enforcement approach.

^[10] In respondents brief, the People acknowledge that the record supports [defendants] claim that the parties understood [defendants] protest to [Officer] Baker opening the safe to be an effective withdrawal of his consent to the search. Accordingly, in his reply brief, defendant withdraws his argument that any consent he gave was tainted by the unlawful detention, as well as the argument that his consent was withdrawn.

^[11] The evidence does reveal that Officer Baker ultimately found the light was working, though it is not at all clear when he made that discovery. Nevertheless, Officer Baker also discovered there was an acrylic license plate cover obscur[ing] the license plate light, which the court found was probably why Officer Baker could not read the license plate from 50 feet.