THE PEOPLE v. JONATHAN PINEDA

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JONATHAN PINEDA, Defendant and Appellant.

B215050

Decided: February 10, 2010

Anthony M. Solis for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Jonathan Pineda appeals from the judgment entered upon a plea of no contest to count 1, possession for sale of a controlled substance, cocaine, in violation of Health and Safety Code section 11351.   Appellant was sentenced to three years' probation on condition that he spend 180 days in county jail, enroll in a drug counseling program, pay a series of fines, and comply with several behavioral requirements.   We affirm.

CONTENTIONS

Appellant contends that:  (1) the probation search was improper;  and (2) the search of the shoebox appellant held was unreasonable.

FACTS AND PROCEDURAL HISTORY

On June 10, 2008, Los Angeles Police Department Detective Peter Wilson was working with the Task Force for Regional Auto Theft Prevention (TRAP).   On that day, Detective Wilson responded to a condominium unit in Los Angeles County on the information that Jose Magana (Magana), who was on probation for receiving stolen property, was storing a stolen vehicle in the garage assigned to that unit.   The TRAP team was aware that Magana had been incarcerated in the Los Angeles County jail for the past three weeks.   The officers knew that Magana was in jail for a one-year sentence.   Magana's probation officer informed Detective Wilson that Magana was subject to search and seizure 24 hours a day, seven days a week, with or without a warrant or probable cause, and that the authorities could search his residence, whether he was there or not.

Two officers were positioned at the rear of the garage that opened onto the alley behind the condominium unit.   Detective Wilson knocked on the front door and announced that he was a police officer performing a probation search.   While he was waiting for a response, he learned by radio that someone was attempting to escape through the garage.   Los Angeles Police Department Detective George Molina, who was standing in the garage driveway and knew that Detective Wilson and others were knocking on the front door, heard the motorized garage door open.   Detective Molina observed appellant with no shoes on, in a crouched position, about to run from the garage.   Appellant was positioned five to 10 feet away from Detective Molina.   Detective Molina had his weapon drawn and made eye contact with appellant as appellant began to rise from his crouching position.   Detective Molina suspected that appellant might have a weapon because:  he was conducting a probation search;  appellant appeared about to run;  appellant's hands were not visible;  and the episode occurred within a short period of time.   Detective Molina's partner quickly detained appellant who was holding a shoebox.   The officers opened the shoebox 10 to 15 seconds after detaining appellant.   The shoebox contained almost half an ounce of a substance resembling cocaine in 18 bindles, a digital gram scale, and wrappers with logos.   The substance was subsequently determined to be cocaine.

On July 1, 2008, the People filed a complaint in the Los Angeles County Superior Court charging appellant with possession for sale of a controlled substance, cocaine, in violation of Health and Safety Code section 11351.   At his preliminary hearing on October 16, 2008, appellant moved to suppress evidence pursuant to Penal Code section 1538.5.   The trial court denied the motion and appellant was held to answer.   On October 21, 2008, the People filed an information alleging the same charge.   Appellant pleaded not guilty.   Pursuant to Penal Code section 995, appellant moved to dismiss the information.   On March 18, 2009, the trial court denied the motion.   Appellant then withdrew his plea of not guilty and pleaded no contest to count 1.

DISCUSSION

The trial court did not err in denying the motion to suppress

1. Standard of review

Appellant urges that the trial court erred in denying his motion to suppress because the probation search and subsequent detention and search of appellant were unlawful.  “The standard of appellate review of a trial court's ruling on a motion to suppress is well established.   We defer to the trial court's factual findings, express or implied, where supported by substantial evidence.   In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.”   (People v. Glaser (1995) 11 Cal.4th 354, 362.)

2. The probation search

Appellant first contends that the probation search was unlawful because Magana was not present or residing at the residence and had no authority or control over any part of the searched premises.   We disagree.

“The Fourth Amendment guarantees ‘[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures' and provides that ‘no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’  (U.S. Const., Amend.IV.)” (People v. Woods (1999) 21 Cal.4th 668, 674 (Woods ).)  “In California, probationers may validly consent in advance to warrantless searches in exchange for the opportunity to avoid serving a state prison term.   [Citations.]”  (Ibid.) A search condition deters further offenses by the probationer and ascertains compliance with the terms of probation.  “It long has been settled that a consent-based search is valid when consent is given by one person with common or superior authority over the area to be searched;  the consent of other interested parties is unnecessary.”  (Id. at p. 675.)

“As the finder of fact in a proceeding to suppress evidence [§ 1538.5], the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.  [Citation.]  Accordingly, in reviewing the instant suppression order, we consider the record in the light most favorable to defendants ․ since ‘all factual conflicts must be resolved in the manner most favorable to the [superior] court's disposition on the [suppression] motion.’  [Citation.]  But while we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found.   [Citations.]”  (Woods, supra, 21 Cal.4th at pp.   673-674.)

Appellant first argues that the probation search was unreasonable because Magana did not reside at the residence.   He contends the officers knew Magana was not present or residing at the premises because they knew he had been incarcerated for the past three weeks.   Appellant urges that it was unreasonable for the officer to assume that Magana would be living at the same address in one year, because, among other things, he could be divorced or separated from his wife by then.   We disagree with appellant's argument.   Appellant does not dispute that Detective Wilson was informed by Magana's probation officer that he was subject to “search and seizure 24 hours a day, seven days a week, with or without a warrant or probable cause,” and that the officers could search his residence whether he was there or not.   Detective Wilson testified that he had confirmed that the location to be searched was Magana's actual residence as given by Magana to authorities and that Magana's wife and children currently lived there.   Thus, the absence of Magana's physical person from the residence does not matter, because the probation conditions specifically allowed the officers to search Magana's residence whether he was present or not.   Appellant's argument that Magana might not return to the residence after he completed his jail term is simply speculative.

Next, appellant contends that even assuming the searched premises constituted Magana's residence, Magana had no authority or control over any premises outside his jail cell.   We disagree.   As explained in Woods, supra, 21 Cal.4th at page 676, “The common authority theory of consent rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.   As previously stated, Magana had the right to, and did, permit the inspection of the residence by agreeing to the probation terms.   Thus, he exercised common authority over the premises.   Moreover, Detective Wilson testified that he knew that Magana had been in county jail for about three weeks and was on probation for receiving stolen property.   Yet he had received information that a stolen vehicle was in Magana's garage.   Despite appellant's argument to the contrary, Magana could have authorized or directed the concealment of the car in his garage before or during his jail stay.

Appellant's further argument that the search of the house and garage exceeded the scope of the consent given does not avail him because Magana consented to a search of the garage, and appellant was detained and searched with reasonable cause as he was attempting to flee the garage, prior to the search of the condominium as discussed in part 3, post.  (Woods, supra, 21 Cal.4th at p. 675, fn. 2 [garage presumed to be part of the residence premises].)

We conclude that the probation search was valid.

3. The officers conducted a lawful detention of appellant and search of the shoebox

Appellant contends that “putting aside the probation search for the moment, the search of [appellant's shoebox] was totally without justification and was wholly unreasonable.”   We disagree.

“[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.   Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so:  the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation] to suspect the same criminal activity and the same involvement by the person in question.  (In re Tony C. (1978) 21 Cal.3d 888, 893, superseded by statute on other grounds as stated in In re Christopher B. (1990) 219 Cal.App.3d 455, 460 fn. 2.)

Detective Molina testified as to specific facts that caused him to believe criminal activity was taking place.   He stated that he was at the residence pursuant to a probation search, investigating evidence of a stolen vehicle at the premises.   The record shows that after another officer knocked on the front door, the garage door opened in front of Detective Molina.   He observed appellant in a crouch, without shoes on, about to flee.   It was reasonable to believe from the timing of the garage door opening, appellants state of undress, and appellants position, that criminal activity was taking place.   (People v. Souza (1994) 9 Cal.4th 224, 235 [flight from police is a proper consideration in determining whether the police have sufficient cause to detain].)

Furthermore, Detective Molina was justified in taking measures to ensure his own safety during the detention by searching appellant.  (Terry v. Ohio (1968) 392 U.S. 1, 24.)   That is, [w]hen an officer reasonably suspects that an individual whose suspicious behavior he or she is investigating is armed and dangerous to the officer or others, he or she may perform a patsearch for weapons.”  (In re H.M. (2008) 167 Cal.App.4th 136, 143 [search of detained defendant justified where defendant ran through traffic, nervously looking around;  was in an area known for gang activity;  was known to one of the officers;  and there had been a shooting a block away previous day].)   Here, as previously stated, Detective Molina testified that he believed appellant was about to flee, because he was arising from a crouched position.   Detective Molina testified he could not see appellants hands, and that appellant was only five to 10 feet away from him.   His belief that appellant might have a weapon was reasonable based on the circumstances surrounding the detention, including appellants attempt to flee officers, his state of undress, and his detention at a probationers residence.   Detective Molina was justified in conducting the search.

We conclude that the detention and search of appellant was lawful.   The trial court did not err in denying the suppression motion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_, J.

ASHMANN-GERST

We concur:

_, Acting P.J. _, J.

DOI TODD CHAVEZ

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