P. v. Groves

Filed 7/31/07 P. v. Groves CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Following denial of defendants motion to suppress (Pen. Code,  1538.5), defendant pleaded guilty to possession of heroin. He appeals from the judgment entered against him on November 20, 2006. His counsel has raised no issues and asks this court for an 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 (Wende); see Smith v. Robbins (2000) 528 U.S. 259.) Upon an independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

An information was filed by the San Francisco District Attorney on December 23, 2005, charging defendant with one count of possession of cocaine base for sale (Health & Saf. Code,  11351.5; count I), one count of possession of heroin (Health & Saf. Code,  11350, subd. (a); count II), and one count of possession of cocaine salt (Health & Saf. Code,  11350, subd. (a); count III). The information also charged defendant with three prior convictions within the meaning of Health and Safety Code sections 11370, subdivisions (a) and (c) and 11370.2, and three prior convictions within the meaning of Penal Code section 1203.07, subdivision (a)(11).

Defendant filed a motion to suppress evidence claiming that information supplied by a confidential informant did not support probable cause to arrest and search defendant. After the court denied the motion to suppress, defendant pursuant to a negotiated agreement pleaded guilty to violating Health and Safety Code section 11350, subdivision (a), as charged in count II and the prosecutor dismissed the remaining counts and special allegations. Defendant subsequently withdrew his guilty plea and all charges and special allegations were reinstated and he entered pleas of not guilty.

On November 20, 2006, defendant pleaded guilty to count II, possession of heroin, in exchange for the prosecutor dismissing the remaining counts and special allegations. Defendant was sentenced on that same date. Imposition of sentence was suspended and the trial court placed defendant on probation for five years, subject to various terms and conditions including that he enter and successfully complete a drug treatment program at Walden House.

Defendant filed a timely notice of appeal based upon the denial of his motion to suppress. He does not challenge the validity of his plea.

The facts giving rise to the underlying offense are summarized from the motion to suppress hearing. About 10:44 p.m. on November 9, 2005, Officer Michael Moody of the San Francisco Police Department received information from an individual that he characterized as a confidential reliable informant (CRI) that an an African-American gentleman with a black leather coat, brown pants, had in his possession a certain amount of base rock cocaine in front of 1950 Mission Street. Moody was in the vicinity of 1950 Mission Street and about 30 seconds after receiving this information, he traveled to the Mission Street address. There he found defendant who matched the informants description standing on the sidewalk in front of 1950 Mission. Moody contacted the informant and confirmed that defendant was the person about whom the informant had spoken. Moody and his partner thereafter did a probable cause search of [defendant] based on the information and confirmation from my CRI. Moody found heroin, base rock cocaine, and cocaine salt in defendants right jacket pocket and placed him under arrest. While booking defendant Moody took $2,279 from defendants right front pants pocket.

According to Moody, he had worked with the informant between three and five times over the course of a five-month period preceding defendants arrest. On two or three of those occasions, the informant provided Moody with information that led to an arrest or the seizure of a weapon or controlled substances. On October 2, 2005, the informant provided Moody with information that led to the seizure of a sawed-off shotgun near the freeway underpass at Potrero and Cesar Chavez Streets. Although an individuals name was still active as a possible suspect, no arrest had been made. The informant subsequently provided Moody with information that led to the arrest of a murder suspect in the vicinity of 16th and Mission Streets. Prior to the suspects arrest, Moody had shown the informant a mug shot of the suspect. Sometime thereafter, Moody and other officers he was working with received information from the informant regarding the suspects location in the 16th Street area, near a white vehicle by a Burger King. The suspect was arrested at that location. Following the arrest of the suspect in the murder case and the seizure of the sawed-off shotgun, Moody paid the informant.

Moody testified that there may have been other occasions in which he had worked with the informant prior to November 9, but he was unable to recall the other circumstances. Moody also testified that he continued to work with the informant and prior to November 9, the informant had never given him unreliable information.[1]

The court denied the Penal Code section 1538.5 motion finding that Moody had a sufficient basis to believe the confidential reliable informant . . . . That based on the totality of the circumstances, he had the good faith basis to continue to believe the CRI. . . .

DISCUSSION

We have reviewed the entire record before us. Defendant was represented by competent counsel at all stages of the proceedings. Counsel advised defendant that a Wende brief would be filed and that defendant had 30 days to file a supplement brief.

The court properly denied the motion to suppress evidence because the information provided by the tested informant under the totality of the circumstances gave the officer probable cause to search and arrest defendant.

We find no arguable issues that require further briefing and accordingly, affirm the judgment.

_________________________

Margulies, J.

We concur:

_________________________

Stein, Acting P.J.

_________________________

Swager, J.

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[1] Moody was not allowed by the court to testify about the reliability of the informant since November 9.