Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. YA074449-01 Steven Van Sicklen, Judge.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, J.
Jahmon Kuiyan Williams, acting in propria persona, pled guilty to one count of possession of a controlled substance. (Health & Saf. Code, § 11350, subd. (a).) He appeals the denial of his motions to suppress evidence. He also purports to appeal the validity of his plea, but the trial court denied his request for a certificate of probable cause, which is required to challenge the validity of a plea. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304.) We affirm.
On March 6, 2009, around 10:00 p.m., Gardena Police Department officers went to an apartment in the City of Gardena in response to a 911 call that was disconnected. The dispatcher told the officers that they received several calls that were disconnected and that they unsuccessfully tried to call the residence back two to four times. Appellant was in the apartment with April Brown, but they both denied making or even knowing about the 911 call. Appellant told the officers that he lived in the apartment with his mother and told them which bedroom was his. Brown was visiting appellant and did not live there.
After the officers determined that no crime was being committed, they asked appellant if he was on parole. He said that he was. The officers placed appellant in handcuffs and conducted a parole compliance search. They found a pipe used to smoke cocaine and a baggy containing what was later determined to be rock cocaine in the bathroom connected to appellant’s bedroom. The officers took pictures of the items, entered them into evidence, and placed appellant under arrest.
Brown testified at the preliminary hearing and the suppression hearing that the officers handcuffed appellant immediately after entering the apartment, and that appellant was not behaving in an unruly or disrespectful manner. According to Brown, appellant did not live in the apartment but was only watching the apartment at his mother’s request because someone had broken into the apartment the week before this incident.
Appellant was charged by information with one count of possession of a controlled substance, cocaine (Health & Saf. Code, § 11350, subd. (a)), and one count of possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)). The information alleged that appellant had suffered five prior strikes within the scope of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior convictions within the meaning of Penal Code section 667.5, subdivision (b), and one prior narcotics conviction (Health & Saf. Code, § 11370, subds. (a), (c)). Appellant entered not guilty pleas and denied all the special allegations.
Appellant sought to represent himself and, on March 10, 2009, he signed an advisement and waiver of his right to counsel. On May 28, 2009, the court advised appellant about the disadvantages of self-representation, but appellant again waived his right to representation by counsel.
Appellant filed a motion to set aside the information under Penal Code section 995, which the court denied. Appellant also filed a motion to suppress evidence under Penal Code section 1538.5, arguing that the search and seizure were unconstitutional. After the hearing, the court denied the suppression motion, stating that the search was not “arbitrary, capricious, or harassing, ” and that it was valid because of the search condition of appellant’s parole.
In June 2009, appellant filed a Pitchess motion, seeking discovery of the officers’ personnel records. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) The court granted the motion as to one officer. The court held an in camera proceeding and found there was no discoverable material.
After filing a motion to compel discovery, appellant moved to dismiss the information for failure to disclose exculpatory evidence, relying on Brady v. Maryland (1963) 373 U.S. 83. The prosecution provided appellant with several items of discovery, but was unable to locate a disk with photographs and an audio recording of an interview of appellant. The court denied appellant’s motion to dismiss, finding that the prosecution did not act in bad faith and that appellant failed to show that the undisclosed evidence was exculpatory. Appellant then filed a motion to dismiss for outrageous police conduct, which the court denied.
Appellant filed another motion to suppress evidence in November 2009 and a supplement to that motion in December 2009. The court held a hearing, reviewed the evidence, and denied the motion.
At a January 2010 hearing, appellant decided to accept an offer from the prosecution to plead guilty to the charge of possession of a controlled substance, cocaine (Health & Saf. Code, § 11350, subd. (a)), in exchange for a two-year suspended sentence, three years of probation, and zero days of custody credits. The prosecutor also agreed to strike all the allegations of prior convictions.
The prosecutor explained appellant’s rights to him and ascertained that appellant understood his rights and waived them. The trial court determined that the plea was knowing, intelligent, free, and voluntary and that there was a factual basis for the plea, and accepted the plea. Pursuant to the plea agreement, the court imposed the midterm of two years, suspended execution of sentence, and placed appellant on three years of formal probation. The court imposed probation conditions and the requisite fines and fees, and reminded appellant that he had waived all his custody credits pursuant to the agreement. The court dismissed count two of the information, possession of a smoking device (Health & Saf. Code, § 11364), in furtherance of justice (Pen. Code, § 1385). Although the reporter’s transcript does not reflect the dismissal of the allegations of prior convictions, the minute order states that the allegations were dismissed, consistent with the plea agreement.
Appellant filed a timely notice of appeal challenging the validity of his plea, but the trial court denied his request for a certificate of probable cause. We subsequently granted his motion to amend the notice of appeal to indicate that the appeal also was based on the denial of his suppression motions. We granted his motions to augment the record to include transcripts of the suppression hearings and the transcript of the audio transmission of his encounter with the police.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On December 10, 2010, we advised appellant that he had 30 days within which to submit any contentions or issues which he wished us to consider. No response has been received to date.
Because appellant failed to obtain a certificate of probable cause, he is precluded from challenging the validity of his plea. (People v. Panizzon (1996) 13 Cal.4th 68, 76; People v. Brown (2010) 181 Cal.App.4th 356, 359.) An appeal based on the denial of a motion to suppress evidence, however, is not subject to the certificate of probable cause requirement. (Cal. Rules of Court, rule 8.304(b)(4); People v. Brown, supra, 181 Cal.App.4th at p. 360.)
“When considering a trial court’s denial of a suppression motion, ‘we view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence.’ [Citations.]” (People v. Davis (2005) 36 Cal.4th 510, 528-529.) “We exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. [Citations.]” (People v. Strider (2009) 177 Cal.App.4th 1393, 1398.)
The transcript of the audio transmission made during the incident indicates that the officers went to appellant’s apartment in response to several disconnected 911 calls. When the officers arrived at the apartment, they explained that they had received numerous 911 calls from the address, and the transcript reveals that they sought to determine the reason for the calls and to ensure that no one was hurt. The transcript further reveals that the officers felt that appellant was being uncooperative and handcuffed him for safety reasons. The record thus indicates that the officers’ entry into the apartment, the questioning of appellant and Brown, and the restraint of appellant were justified by the circumstances. (See People v. Celis (2004) 33 Cal.4th 667, 675 [finding that stopping the suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period, were justified by reasonable suspicion under the circumstances]; People v. Snead (1991) 1 Cal.App.4th 380, 386 [police officer responding to 911 call reporting accidental stabbing could make warrantless entry of hotel room for limited purpose of ensuring safety of those present].)
Once the officers confirmed that appellant was on parole, the search of the apartment was justified as a parole search. “In California, a parolee remains in the legal custody of the Department of Corrections and Rehabilitation through the balance of his sentence and must comply with all of the terms and conditions of parole, including a search condition requiring him to submit to a search, with or without cause, at any time. [Citations.]” (People v. Smith (2009) 172 Cal.App.4th 1354, 1361.) “A suspicionless parole search is constitutionally permissible because the parolee lacks a legitimate expectation of privacy and the state has a substantial interest in supervising parolees and reducing recidivism. [Citation.]” (People v. Hunter (2006) 140 Cal.App.4th 1147, 1152.) Accordingly, the search of the apartment was constitutionally permissible.
In his various filings, appellant gave explanations of the incident that differed from the police accounts. “Because the power to judge the credibility of witnesses, resolve conflicts in testimony, weigh evidence, and draw factual inferences is vested in the trial court, on appeal all presumptions favor the trial court’s proper exercise of that power. [Citations.]” (People v. Bowers (2004) 117 Cal.App.4th 1261, 1271.) The trial court’s factual findings are supported by the evidence, and, on the facts as found by the trial court, the search and seizure were reasonable. The trial court did not err in denying appellant’s motions to suppress.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J.MANELLA, J.