P. v. Manuel















Filed 3/26/13 P. v. Manuel CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
ONE




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THE PEOPLE, Plaintiff and Respondent, v. TITO LAMAR MANUEL, Defendant and Appellant.

A136321 (Napa County Super. Ct. No. CR160460)

Appellant and defendant Tito Manuel
appeals following the judgment entered following his no contest plea to href="http://www.fearnotlaw.com/">unlawful taking or driving of a vehicle
(Veh. Code § 10851, subd. (a)) and admission of two prison priors (Pen.
Code § 667.5, subd. (b)). His appellate counsel has
raised no issues and asks this court for an href="http://www.mcmillanlaw.com/">independent review of the record to
determine whether there are any issues that would, if resolved favorably to
defendant, result in reversal or modification of the judgment. (People v. Kelly
(2006) 40 Cal.4th 106; People v. Wende
(1979) 25 Cal.3d 436.) Defendant was notified
of his right to file a supplemental brief, but has not done so. Upon independent review of the record,
we conclude no arguable issues are
presented for review, and affirm the judgment.

Background

On February 15, 2012, Highway Patrol
Officer Jack Kemper was riding with Officers Insley and Burns, in a patrol car
traveling northbound on Highway 29. The
officers noticed a 2008 Honda Accord traveling in the number two lane because
the driver was continually tapping the brakes.
The officers followed the Honda as it exited the highway in
Yountville. The Honda came to a stop at
the intersection of California Drive, but four feet beyond the limit line. The combination of the brake tapping and
failure to stop at the limit line were “an attention getter” because brake
tapping is a possible sign of impairment and the failure to stop at the limit
line was a violation of Vehicle Code section 22450. As the Honda made a right turn onto
California, Officer Insley, who was driving, activated the overhead
lights. After proceeding through one
more intersection, the Honda pulled over and came to a stop.

Officer
Kemper exited the patrol car and made contact with defendant. Kemper immediately observed smoke in the car,
and a cigar-type residue and a small amount of a leafy green substance in a
plastic bag on defendant’s lap, which Kemper suspected was marijuana.

Upon
running the license plate number of the Honda, Officer Kemper was advised the
car was reported stolen by the Vallejo Police Department. At this point, Officer Kemper arrested
defendant and searched him. He found a California
identification card bearing defendant’s name and three debit cards bearing the
names of other individuals. Officer
Kemper also ran the VIN, and was again advised the car had been reported
stolen. He was also advised the license
plate did not match the VIN and the plate should have read 6EVH428. A search of the car then turned up a laptop
computer. In addition, a white powdery
substance was found in the center console which the officer believed was
cocaine.

Officer
Kemper then advised defendant of his Mirandahref="#_ftn1" name="_ftnref1" title="">[1]> rights, and defendant agreed to speak
with Kemper. Defendant said he had
gotten the car from “Fred Smith,” a “black dude” who lived in Vallejo. Smith had let defendant borrow the car, which
defendant had promised to return the following day. Defendant claimed the debit cards were in the
Honda when he took it and he had asked Smith if the cards were stolen and Smith
had said, “[N]o.”

The
following day, on February 16, 2012, the Napa County District Attorney filed a
five-count complaint alleging: felony
identity theft (Pen. Code, § 530.5, subd. (a)); felony unlawful taking or
driving of a vehicle (Veh. Code, § 10851, subd. (a)); felony receipt of
stolen property (Pen. Code, § 496, subd. (a)); misdemeanor false evidence
of registration (Veh. Code, § 4462.5); and misdemeanor driving with a
revoked or suspended license (Veh. Code, § 14601.1, subd. (a)). As to the felony counts it was further
alleged defendant had suffered a prior felony conviction for which he had
served a prison term less than five years before incurring the new charges
(Pen. Code, § 667.5, subd. (b).) On
March 6, the district attorney filed an amended, 13-count complaint
alleging: felony unlawful taking or
driving of a vehicle (Veh. Code, § 10851, subd. (a)); felony receipt of
stolen property, motor vehicle (Pen. Code, § 496d, subd. (a)); felony sale/transportation/offer
to sell a controlled substance (Health & Saf. Code, § 11352, subd.
(a)); felony possession of a controlled
substance (Health & Saf. Code, § 11350, subd. (a)); felony
receiving stolen property (Pen. Code, § 496, subd. (a)); six counts of
felony identity theft (Pen. Code, § 530.5, subd. (a)); misdemeanor false
evidence of registration (Veh. Code, § 4462.5); and misdemeanor driving
with a revoked or suspended license (Veh. Code, § 14601.1, subd.
(a)). As to the felony counts it was
further alleged defendant had suffered three prior felony convictions for which
he had served a prison term less than five years before incurring the new
charges (Pen. Code, § 667.5, subd. (b)).


Following
a preliminary examination on March 7, 2012, the trial court held defendant to
answer on counts 1 and 2, and the prison prior allegations. He was held not to answer on counts 3 through
11. The district attorney filed a
five-count information on March 7, 2012:
felony unlawful taking or driving
of a vehicle (Veh. Code, § 10851, subd. (a)); felony receipt of stolen
property, motor vehicle (Pen. Code, § 496d, subd. (a)); felony receipt of
stolen property (Pen. Code, § 496, subd. (a)); misdemeanor false evidence
of registration (Veh. Code, § 4462.5); and misdemeanor driving with a
revoked or suspended license (Veh. Code, § 14601.1, subd. (a)). As to the felony counts it was further
alleged defendant had suffered three prior felony convictions for which he had
served a prison term less than five years before incurring the new charges
(Pen. Code, § 667.5, subd. (b)).
Defendant declined to waive his speedy trial rights.

On
May 1, 2012, defendant moved to suppress all evidence from the traffic stop,
claiming he had been unlawfully detained.
He also moved to dismiss (Pen. Code, § 995) counts 3 and 4 for lack
of evidence of knowledge, the ground on which the trial court had dismissed count
three of the amended complaint. The prosecutor
opposed both motions. As to the motion
to suppress, the prosecution argued: the
officer had reasonable suspicion to detain defendant on the basis of the moving
violation; defendant had no legitimate expectation of privacy in a stolen
vehicle; and the officer was aware defendant was on parole and therefore
subject to search.

The
motions came on for hearing on May 11, 2012.
As to his motion to suppress, defendant argued that given the time of
night and the position of the patrol car, the officers could not have seen that
he came to a stop beyond the limit line.
Therefore, there was no basis to effectuate a traffic stop. The prosecution argued the motion should be
denied on the basis of Officer Kemper’s testimony. The trial court credited the officer’s
testimony and denied the motion on the ground the moving violation provided a
basis for the detention. After reviewing
the preliminary hearing transcript, the court also denied the motion to
dismiss.

The
trial court then turned to a number of in limine matters, including Evidence
Code section 1101, subdivision (b), evidence.
Defense counsel complained he
had received one police report only several weeks earlier and another the day
before the hearing. The prosecution
stated there had been some confusion and delay in obtaining the information,
and the defense was provided copies of the reports as soon as the prosecution
received them. After hearing
considerable argument, the trial court denied defendant’s request to exclude
the Evidence Code section 1101, subdivision (b), evidence for untimely
disclosure. The court then found good
cause to continue the trial date, despite defendant’s continued invocation of his
speedy trial rights, to allow defense
counsel adequate time to prepare. The
trial court also denied defendant’s request to reduce bail or release him on
his own recognizance.

On
June 1, 2012, at the readiness hearing, the court heard further in limine
motions, including on the Evidence Code section 1101, subdivision (b), evidence
of two relatively recent vehicle thefts of which defendant was acquitted. The prosecution argued there were significant
similarities, including the style and colors of the cars, and location of the
thefts, with the present case, and the evidence was relevant to the defendant’s
knowledge that the car was stolen. The
defense argued the evidence and the fact he was acquitted of the thefts was
highly prejudicial and would essentially beg for a conviction the “third”
time. The trial court agreed, and ruled
the evidence would be excluded.

Following
this ruling, defendant entered into a negotiated disposition in which he would
plead no contest to a violation of Vehicle Code section 10851, subdivision (a),
admit two of the prison priors, and be sentenced to the low term of 16 months
on the section 10851 charge, to be served on supervision. Defendant initialed and signed a change of
plea form, acknowledging the rights he was waiving and setting forth the terms
of the bargain. The trial court duly
queried defendant on the record that he had read and understood the plea form,
had had adequate time to consult with counsel, understood the plea and was
freely and voluntarily entering into it.
The court then accepted defendant’s plea and admissions.

On
June 21, 2012, the trial court sentenced defendant in accordance with the terms
of the negotiated disposition. He was
sentenced to a total of 40 months (16 months on the Vehicle Code section 10851
charge and one year each, consecutively, on the prison priors) and committed to
the Napa County Department of Corrections
under Penal Code section 1170, subdivision (h)(5)(B). He was given 256 days of custody credits, and
the balance of the time suspended, with mandatory supervision imposed subject
to enumerated terms and conditions.

>Discussion

As
a general rule, Penal Code section 1237.5 precludes an appeal from a judgment
of conviction after a no contest or guilty plea unless the defendant has
applied for and obtained a certificate of probable cause. There are two exceptions—where there is a
search and seizure issue as to which an appeal is proper under Penal Code
section 1538.5, subdivision (m), and where the appeal pertains to postplea
proceedings for purposes of determining the degree of the crime or the penalty
imposed. (People v. Shelton (2006) 37 Cal.4th 759, 766; see also >People v. Buttram (2003) 30 Cal.4th 773,
780.) Defendant did not request or
obtain a certificate of probable cause, so he is not able to challenge the
validity of his plea or any other matter, save his motion to suppress, that
preceded the entry of his plea. (>People v. Cole (2001) 88 Cal.App.4th
850, 868.) Upon review of the
proceedings pertaining to his motion to suppress, we conclude there is no
viable issue on appeal. The trial court
could, and did, credit the testimony of the Highway Patrol Officer, and his
testimony established ample basis for the traffic stop. In all proceedings, defendant was ably
represented by counsel. He duly executed
a waiver of rights form that contained all necessary advisements as to his
constitutional rights and admonitions as to direct consequences of his
plea. At the sentencing hearing, the
trial court made all necessary findings, imposed sentence in accordance with
the negotiated disposition and imposed all required fines and fees and reserved
restitution.

Disposition

After a full review of the
record, we find no arguable issues and affirm the judgment.





_________________________

Banke,
J.





We concur:





_________________________

Margulies, Acting P. J.





_________________________

Dondero, J.