P. v. Gonzalez

Filed 6/30/08 P. v. Gonzalez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, David Mintz, Judge. Affirmed.

Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Following the trial courts denial of his motion to suppress evidence (Pen. Code,  1538.5), defendant Ignacio Perfecto Gonzalez entered a plea of no contest to transporting marijuana (Health & Saf. Code,  11360, subd. (a)). Defendant also admitted that he suffered a prior strike conviction (Pen. Code,  667, subds. (b)-(i), 1170.12) and served a prior prison term (id.,  667.5, subd. (b)). The trial court sentenced him to state prison for a total term of five years and granted the Peoples motion to dismiss all other counts and sentencing enhancement allegations. On appeal, defendant challenges the denial of his suppression motion and his Pitchess[1]motion. We affirm.

FACTS

On the evening of December 6, 2006, Montebello Police Officer Brion Gorrell was on patrol in his police vehicle when he noticed that the passenger-side taillight of the Honda Civic being driven by defendant was inoperable in violation of Vehicle Code section 24252. Officer Gorrell pulled defendant over and asked for his drivers license. Defendant said he had none. After confirming via radio that no drivers license had been issued to defendant, Officer Gorrell arrested defendant for driving without a license in violation of Vehicle Code section 12500, subdivision (a).

During a search incident to defendants arrest, the police recovered a plastic bag containing five smaller plastic bags containing a white crystalline substance resembling amphetamine, several empty baggies, a cellular telephone and some currency. Officer Gorrell then placed defendant in the back of his patrol car. A female companion in defendants car also was arrested.

Intending to impound the vehicle, Officer Gorrell commenced an inventory search of defendants car. Under the center console, he found a small electronic scale. Given the fact that he found narcotics on defendant and a scale in his car, Officer Gorrell called for the assistance of a drug sniffing dog. The dog alerted the officer to the rear seat under which a brick of marijuana was found.

According to defendants mother, Socorro Vargas, on December 4, 2006, defendant came to her house after work. When he left around 6:00 or 7:00 p.m., she watched him drive off and noted particularly that the taillights on his car were working properly.

DISCUSSION

Suppression Motion

In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the courts resolution of the factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.] Applying this standard, we discern no error in the trial courts denial of defendants motion to suppress. (People v. Hoyos (2007) 41 Cal.4th 872, 891.)

In this case, the trial court credited Officer Gorrells testimony that the taillight of defendants car was inoperable. We may not disturb this credibility determination on appeal. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Inasmuch as Vehicle Code section 24252, subdivision (a), mandates that [a]ll lighting equipment of a required type installed on a vehicle shall at all times be maintained in good working order, and the term lighting equipment includes taillamps (id.,  375, subd. (a)), the officer had probable cause to stop defendants vehicle for violating this statutory provision. (Cf. In re Justin K. (2002) 98 Cal.App.4th 695, 698-699.)

Upon asking defendant for his drivers license and confirming via radio that the Department of Motor Vehicles had never issued defendant a drivers license, Officer Gorrell was authorized to arrest defendant for violating Vehicle Code section 12500, which prohibits a person from driving a motor vehicle unless the person then holds a valid drivers license issued under this code. (Subd. (a).) A violation of Vehicle Code section 12500, subdivision (a), is a misdemeanor, not an infraction. (Veh. Code,  40000.11, subd. (b).)

Once Officer Gorrell placed defendant under arrest, the officer was legally entitled, incident to that arrest, to conduct a search of defendants person for weapons and evidence of a crime. (United States v. Robinson (1973) 414 U.S. 218, 235; People v. Leal (2008) 160 Cal.App.4th 701, 708.) Because defendant was driving a car at the time of his arrest, it also was permissible for Officer Gorrell to search the passenger compartment of defendants car. (New York v. Belton (1981) 453 U.S. 454, 460-461; Leal, supra, at p. 709.) The trial court properly denied defendants suppression motion.

Pitchess Motion

A challenge to a ruling on a Pitchess motion is cognizable on appeal pursuant to Penal Code section 1538.5, subdivision (m), despite defendants plea, if the Pitchess motion is intertwined with litigating the legality of the search. (People v. Collins (2004) 115 Cal.App.4th 137, 141, 151; accord, People v. Hobbs (1994) 7 Cal.4th 948, 956-957.)

Defendant asserts that [a]t the conclusion of the suppression hearing, defense counsel requested that the court delay its final ruling until after it had reviewed the pending Pitchess motion. He further asserts that [t]he court did so and denied the motion after examining the officers personnel records in camera. Defendant mischaracterizes the record.

Defendant filed his motion to suppress evidence on April 6, 2007. This motion was heard and unequivocally denied on April 23, 2007. Right after the trial court denied the motion, defense counsel stated, Your Honor, Im going to ask based on some information received today to go over to May Id like to go over to May 29. When the court asked about the information to which he referred, defense counsel stated: Well, through confidential communications with my client and based on the officers testimony, I might have a basis at this point to file a Pitchess that I didnt know about previously. [] Additionally, I will need to do a bit more investigation based on the officers testimony and my conversation with the client. The court stated okay and with defendants consent continued his case to May 21. At no time did defense counsel ask the court to reserve its ruling on defendants suppression motion pending the filing and resolution of a Pitchess motion, and the trial court did not volunteer to do so.

On May 15, 2007, defendant filed his Pitchess motion. On June 11, the court granted the motion and held an in camera hearing during which it reviewed police personnel records and ordered no disclosure. The subject of defendants suppression motion did not thereafter come up.

Under these circumstances, we conclude that defendants Pitchess motion was not intertwined with litigating defendants Fourth Amendment challenge. Accordingly, defendants challenge to the propriety of the trial courts Pitchess ruling is not cognizable in this appeal following defendants plea. (People v. Collins, supra, 115 Cal.App.4th at pp. 141, 151; accord, People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1178.)

The judgment is affirmed.

NOT TO BE PUBLISHED

NEIDORF, J.*

We concur:

MALLANO, P. J.

ROTHSCHILD, J.

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[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

* Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.