P. v.
Filed 3/26/13 P. v. Warren CA1/3
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opinion has not been certified for publication or ordered published for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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
TIMOTHY C.
WARREN,
Defendant and Appellant.
A136106
(Sonoma County
Super. Ct.
No. SCR610771)
Appellant
Timothy C. Warren appeals from an order denying his
no contest to felony possession of
methamphetamine for sale in violation of Health and Safety Code section
11378, subdivision (a), and was sentenced to three years to be served in jail
and on mandatory supervised probation.
Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, requesting that we conduct
an independent review of the entire
record on appeal. Having done so, we
affirm the trial court’s order.
FACTUAL AND
PROCEDURAL BACKGROUND
On
February 27, 2012, an information was filed charging appellant with felony
violations of Health and Safety Code section 11378, possession of
methamphetamine for sale, and section 12020, subdivision (a)(1), possession of
a billy club.
title="">[2] With respect to both violations it was
alleged appellant had been convicted of a prior drug crime within the meaning
of Health and Safety Code section 11370.2, subdivision (c).
On
April 25, 2012, appellant filed a motion pursuant to section 1538.5
to suppress evidence seized from his person and vehicle by Officer John Whitten
of the Santa Rosa Police Department.
Appellant argued that, at the time of his arrest on November 19, 2011,
he was detained without reasonable suspicion.
At
a subsequent hearing on the suppression motion, Officer Whitten testified to
the following facts.
name="_ftnref3" title="">[3] At about 6:20 p.m. on November 19, 2011,
Officer Whitten was on patrol in a marked police vehicle. After switching off his vehicle’s headlights,
Officer Whitten pulled into the mostly-full Montecito Center parking lot, where
he had in the past made about 10 to 20 drug-related arrests, mostly in the area
behind Fiorino’s Bar. Officer Whitten
parked at a slight angle behind an empty parking spot to the immediate right of
the spot where a Dodge pick-up truck was parked, and then walked over to the
truck to speak to its occupants through the driver-side window. He did not block the truck from leaving or
shine his vehicle’s lights into it.
William Hartwell was in the driver’s seat and appellant was in the front
passenger seat.
Officer
Whitten advised the men that he wished to speak to them due to the prevalence
of drug activity in the area, and asked whether they were on probation or
parole or had any outstanding warrants against them. Hartwell acknowledged a pending drug charge;
appellant responded that he may have an outstanding warrant. Although Officer Whitten had a friendly,
relaxed tone and did not display a weapon, touch the men or advise them they
were under arrest, the men appeared nervous, immediately starting to smoke
cigarettes and avoiding eye contact.
Based
on appellant’s statement that he may have an
both men’s identification cards and ran records check, through which he learned
appellant was on probation subject to a warrantless search and seizure
condition. Officer Whitten then called
for a back-up officer, who arrived about five to ten minutes after his initial
contact with the men. Once the second
officer arrived, Officer Whitten detained appellant with handcuffs, removed him
from the truck, and conducted a probation search, finding on his person nearly
a half ounce of methamphetamine, a digital scale and a controlled substance
pipe. Appellant told Officer Whitten
that he had a vehicle parked nearby. Officer
Whitten’s subsequent search of the vehicle revealed an improvised billy
club.
After
Officer Whitten’s testimony, defense
counsel called to the stand Hartwell and Tina Cody, appellant’s longtime
girlfriend who was at Fiorino’s Bar at the time of the arrest. Cody testified, contrary to Officer Whitten’s
testimony, that Officer Whitten used his patrol vehicle to block Hartwell’s
pick-up truck, such that Hartwell could not have backed out of his parking space
without hitting it. Cody also claimed
that the patrol vehicle’s headlights were illuminated when Officer Whitten
pulled up, and that she believed the amber lights on top of the patrol vehicle
were also illuminated. Finally, Cody
testified that, after Officer Whitten first approached Hartwell’s truck, it
took 12 to 15 minutes for the second police officer to arrive. Neither appellant nor Hartwell left the truck
during this time.
Hartwell
testified that, after having a few drinks, he and appellant were ready to leave
the bar on the night in question, although Cody wished to stay. Because appellant had been drinking, Hartwell
offered him a ride to a friend’s house.
Just as they got in the Dodge pick-up and were fastening their
seatbelts, a police vehicle pulled in directly behind them with its headlights
on. Hartwell could not have backed out
his truck if he had wanted to. Within 30
seconds, the officer had approached them, asking whether they were on probation
or parole and for identification. Hartwell
denied being on probation or parole and appellant said nothing. Both men gave the officer identification,
which the officer took back to his patrol car to run a records check, a process
taking about 10 minutes. At this point,
Officer Whitten returned with another officer, took appellant out of the truck
and searched him.
Appellant
thereafter gave testimony consistent in most regards with Hartwell’s testimony
regarding the night in question. In
addition, contrary to Officer Whitten’s testimony, appellant denied telling the
officer that he may have had an outstanding warrant. Rather, appellant claimed he said nothing
when the officer asked him only whether he was on parole or probation. Appellant also testified to having “a really
big drug habit,†although he had not taken drugs that day. He did not recall whether the lights on
Officer Whitten’s patrol vehicle were illuminated.
Following
the hearing, the trial court denied appellant’s motion to suppress. The trial court reasoned that the initial
encounter between Officer Whitten and appellant was consensual. Officer Whitten did not block Hartwell’s
truck; he merely approached it and asked whether the men were on probation or
parole. Then, when appellant responded
that he may have an outstanding warrant, the officer had probable cause to
detain him. Moreover, the men
voluntarily gave the officer their identification cards, the check of which
revealed appellant was subject to a warrantless
search and seizure probation condition.
In
so reasoning, the trial court acknowledged finding Officer Whitten’s testimony
more credible than that of the other witnesses, in part, it noted, because the
officer had a better vantage point for observing the incident, including the
location of his vehicle relative to Hartwell’s truck.
After
the trial court denied his motion, appellant pled no contest to possession of
methamphetamine for sale. The parties
stipulated to a factual basis for the plea based on the police reports and
preliminary hearing transcript. In
exchange for this plea, they also agreed the remaining count and enhancement
would be dismissed and that appellant would be sentenced to three years, to be
served pursuant to section 1170, subdivision (h).
Consistent
with the plea agreement, the trial
court then ordered appellant to serve three years, two of which would be served
in jail and the remaining year on mandatory supervised probation, subject to
various terms and conditions. One of
these conditions, unchallenged by the parties, was that appellant “provide
Probation with passwords for cell phone and computer.†This condition, in turn, was intended to
facilitate another probation condition requiring him to submit to warrantless
searches of person, property, vehicle and residence at any time by a probation
or law enforcement officer. The trial
court also granted him two days of presentence custody credit.
Appellant
timely appealed the denial of his motion to suppress.
DISCUSSION
As
we previously stated, appellant’s appointed counsel has filed an opening brief
setting forth the material facts, but raising no issue for our
consideration. Counsel requests that we
independently review the record to decide whether there exists any nonfrivolous
issue for appeal. (People v. Wende, supra, 25 Cal.3d 436; People v. Kelly, supra, 40 Cal.4th 106.) Counsel has also attested that appellant was
advised of his right to file a supplemental brief with this court. Appellant declined to do so.
After
an independent review of the record, we agree with appellant’s counsel that
there are no reasonably arguable legal or factual issues for our
consideration. The trial court denied
appellant’s motion to suppress evidence that was seized from his person and
vehicle after finding, based on Officer Whitten’s competent testimony, that
appellant was lawfully detained based, first, on his acknowledgement to Officer
Whitten that there may be an outstanding warrant against him and, second, on
Officer Whitten’s subsequent confirmation from a police records check on
appellant’s freely-given identification card that he was subject to a
warrantless search and seizure probation condition. Given this record, we conclude the trial
court’s order denying the motion to suppress evidence was lawful. (People
v. Lim (2000) 85 Cal.App.4th 1289, 1296 [“When reviewing the grant or
denial of a motion to suppress, an appellate court must uphold the trial
court’s express or implied findings of fact if the facts are supported by
substantial evidenceâ€]; People v. Brown
(1990) 216 Cal.App.3d 1442, 1447 [the legality of a search and seizure is
measured by the “facts, as found by the trier [of fact], against the
constitutional standard of reasonablenessâ€].)
Having
ensured appellant received adequate and effective appellate review, we thus
affirm the trial court’s ruling. (
pp. 441-442; People v. Kelly, supra,
40 Cal.4th at pp. 112-113.)
DISPOSITION
The
order denying appellant’s motion to suppress evidence is affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Pollak, J.
statutory references herein are to the Penal Code.
name="_ftn2" title="">[2] Section 12020 has since been
repealed. (Pen. Code § 12020
[Section repealed 2012].)
