P. v. Moore

Filed 8/21/07 P. v. Moore CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Stephen P. Gildner and Lee P. Felice, Judges.

Laura Schaefer, under appointment by the Court of Appeal, and Keith A. Moore, in pro. per., for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Keith A. Moore was charged in an information with possession of cocaine (Health & Saf. Code,  11350, subd. (a)) and with two prior serious felony convictions within the meaning of the three strikes law (Pen. Code,  667, subds. (c)-(j) & 1170.12, subds. (a)-(e)) and two prior prison term enhancements (Pen. Code,  667.5, subd. (b)).^[1] The trial court denied appellants motion to suppress ( 1538.5). Appellant pled no contest to possession of cocaine and admitted the two prior serious felony allegations. The two prior prison term enhancements were dismissed.

The court exercised its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike one prior serious felony conviction. Given the amount of contraband found, the court denied probation and sentenced appellant to the mitigated term of 16 months, which it doubled to 32 months pursuant to the three strikes law. The court imposed a restitution fine and granted appellant applicable custody credits.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on March 23, 2007, we invited appellant to submit additional briefing. Appellant responded with a letter requesting that this court review the trial courts denial of his suppression motion to determine if officers violated his constitutional rights when they searched him without a warrant.

FACTS

Terrence Palmer, appellants parole agent, testified that in December 2005 he issued a warrant for appellants arrest for absconding from parole. On December 16, 2005, Palmer submitted a report to the Board of Prison Terms in Sacramento requesting cancellation of the warrant. Palmer remained in contact with appellant between December 16, 2005 and February 7, 2006. As a parolee, appellant was subject to a search condition.

Cecilia Martinez had a son with appellant and was staying in his home. Martinez testified that appellant was not allowed to have contact with her but he could come to the house to check his mail and pay the rent. On February 7, 2006, appellant arrived at the house upset. Martinez went to the police department to inquire how to get appellant to leave. The desk sergeant learned that appellant was on parole and a warrant had been issued in December for his arrest. Martinez told the sergeant that she knew appellant had seen his parole agent three or four times. Although the sergeant told Martinez not to go home, she did so anyway because she needed a bottle for her child.

When Martinez arrived home, appellant was gone. After 10 minutes, the police arrived and Martinez showed them appellants picture. Martinez told the officer appellant had been reporting to his parole agent and had not absconded from parole.

Katherine Thomas, a police dispatcher, testified she ran a warrant check on appellant on February 7, 2006 through a nationwide system for checking warrants. Thomas determined that appellant had an active parole warrant. Thomas also called the parole office in Sacramento and was informed that appellants warrant was active. A copy of the warrant indicated it was for [a] parole violation, felony, no-bail warrant.

On February 7, 2006, Officer Jesse Gracia learned appellant had an active warrant for absconding from parole. Gracia contacted appellant on a street corner and placed him under arrest for the warrant. Gracia conducted a search incident to the arrest and found on appellants person three individually wrapped rocks of cocaine and a glass smoking pipe in his right front pocket.

DISCUSSION

We initially note that appellant received complete advisements of the consequences of his plea and his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. Counsel stipulated that the police and laboratory reports formed a factual basis for the plea. The trial court found a factual basis for the plea. In sentencing appellant, the trial court exercised its discretion pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497 to strike a prior serious felony conviction. The court sentenced appellant to the lower term of 16 months, which it doubled to 32 months because of a second prior serious felony allegation within the meaning of the three strikes law.^[2] We find no error in appellants change of plea hearing or in the trial courts imposition of sentence.

The basis of appellants suppression motion before the trial court was his contention that the arrest warrant issued by his parole agent in December 2005 had been recalled prior to his arrest on February 7, 2006. Appellants contention rests on his argument that the arrest warrant had been recalled and the arresting officer had no basis for searching appellant. There was evidence adduced at the suppression hearing that law enforcement personnel believed the warrant was still operative.^[3]

More importantly, there was uncontradicted evidence that appellant was a parolee and the arresting officer knew of appellants status as a parolee. The significance of the officers knowledge of the search condition was established in People v. Sanders (2003) 31 Cal.4th 318 (Sanders). In Sanders, the court concluded that a warrantless and otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted. (Id. at p. 335.)

As a known parolee, appellant was subject to a parole search condition that permitted searches at any time, with or without cause. The only limitation on parole searches is that they must not be arbitrary, capricious or harassing. (People v. Reyes (1998) 19 Cal.4th 743, 752.) There was no evidence to suggest the search of appellant was arbitrary, capricious, or harassing. There were, therefore, no grounds on which to challenge the search or suppress the evidence seized as a result of the search.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P. J., Wiseman, J., and Cornell, J.

Judge Gildner ruled on appellants motion to suppress; Judge Felice sentenced defendant.

^[1] Unless otherwise indicated, all statutory references are to the Penal Code.

^[2] Appellant was advised that he faced a sentence as long as 25 years to life and he was not guaranteed that the trial court would strike one of the prior serious felony allegations.

^[3] Based on the testimony of Cecelia Martinez, appellant violated a condition of his parole by coming into direct contact with her. This would have provided officers with another basis for detaining appellant.