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People v. Calderon

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 23, 2012
B226090 (Cal. Ct. App. Jan. 23, 2012)

Opinion

B226090

01-23-2012

THE PEOPLE, Plaintiff and Respondent, v. OSVALDO SANCHEZ CALDERON, Defendant and Appellant.

Manuel H. Miller and Law Offices of Manuel H. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA358092)

APPEAL from a judgment of the Superior Court of Los Angeles County. Beverly O'Connell, Judge. Affirmed as modified.

Manuel H. Miller and Law Offices of Manuel H. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

After appellant's suppression motion was denied, he negotiated a plea agreement by which he was convicted of possession of 20 kilograms of cocaine for sale (count 1) and possession of over $100,000 in drug money (count 3). He was sentenced to 20 years in prison, and now appeals the order denying his motion to suppress. We affirm.

SUMMARY OF FACTS

1. The Investigation

For several months beginning in April 2009, a team of officers led by Detective Arthur Stone of the Los Angeles Police Department had conducted an investigation targeting a drug trafficking organization that was using appellant's residence at 10247 San Luis Avenue in South Gate as a "stash house." Based upon its investigation, which included four or five surveillances, the team determined the house was used to store and distribute large amounts of cocaine and that appellant was utilizing multiple vehicles to transport the cocaine, including a Honda Ridgeline truck.

During the morning of June 22, 2009, officers observed appellant walk from a certain apartment complex in Baldwin Park carrying a brown, boxy container to his Ridgeline truck, drive to a parking lot several miles away, and meet two Hispanic males in a Chevrolet truck. After appellant motioned to the males in the Chevrolet to follow him, the two trucks drove in tandem to the South Gate residence, where appellant parked on the street and entered the garage from the rear while carrying his package. He rolled up the garage door, let the Chevrolet truck inside, and the garage door was again closed. An hour later, the truck drove away and the garage door was closed from the inside. These observations were consistent with previous observations made at appellant's residence and consistent with methods typically used by narcotic traffickers. Stone asked Officer Joe Salazar to obtain a warrant to search appellant's residence and vehicles.

Surveillance of the South Gate residence resumed at about 4:00 p.m. that same day. At 5:32 p.m. officers observed appellant again drive up to the South Gate residence in his Ridgeline truck, park on the driveway, enter the garage through a side door, and roll up the door. He then drove the truck inside the garage and closed the door. At 6:16 p.m., appellant opened the roll-up door, backed out of the garage, closed the garage door, and drove off. Believing appellant had just loaded his truck with cocaine or drug money and was transporting it to co-conspirators, Detective Nick Vascones contacted Officer Robert Pellerin at Stone's behest and asked him to follow appellant and stop the truck if appellant committed a traffic violation.

Within a minute or two after receiving the call from Vascones, Pellerin saw the Ridgeline truck and began following it. At about 6:24 p.m., Pellerin noticed that appellant had a cell phone in his left hand while driving and that he was pushing buttons on the phone with his right hand while making a left turn. At or before 6:27 p.m., Pellerin stopped the truck in front of South Gate Park for a violation of Vehicle Code section 23123, subdivision (a). He advised appellant that he was stopping him for "manipulating" his cell phone while driving, and asked him for his driver's license and vehicle registration.

Appellant responded by nodding his head, thereby indicating that he had been using his cell phone while driving, and told Pellerin that he was sorry. After appellant gave Pellerin his license and registration, the officer went to his patrol car to verify they were current, and two minutes later returned to appellant's truck. Pellerin asked appellant what he was doing and if he had anything illegal in his truck. After appellant said he did not, Pellerin asked if he could search the truck. Appellant said yes.

During the search, in a rear compartment, Pellerin found a duffel bag containing 20 plastic-wrapped, kilo-sized, brick-shaped packages of cocaine. Inside the cab, the officer found appellant's passport, other personal documents, and a notebook documenting drug transactions.

2. Search of the Residence

After appellant was arrested, the facts summarizing the truck search were added to the affidavit in support of the search warrant Salazar was preparing. Vascones informed appellant of the facts leading up to the application of the search warrant and advised him of his constitutional rights. Appellant waived his rights and confessed that the 20 kilograms of cocaine found in the Ridgeline truck were his. He also disclosed the further contraband that would be found in his South Gate residence, including more cocaine, firearms, and about $135,000 in cash. The search warrant affidavit was not supplemented with these admissions.

Meanwhile, only five minutes after Pellerin had stopped appellant in his truck, surveilling officers saw appellant's wife (Adriana Sanchez) arrive at the South Gate residence, park her car, enter the house, and almost immediately exit while carrying a large handbang. Believing appellant had called or texted Sanchez before Pellerin detained him, Stone had Sanchez detain her near the driveway before she could leave. Stone did this because, based upon his experience of investigating drug trafficking organizations, he believed appellant may have used his cell phone while driving to contact co-conspirators and direct that drugs be moved from out the house. Also, based upon observations made that day, there was a high probability that drugs, weapons, and cash were in appellant's house.

Stone then directed officers to enter the residence and secure it pending issuance of the search warrant. Officers swiftly entered the house and conducted a sweep of the residence to determine if others were present and to ensure that no evidence was being destroyed while they waited for the warrant to be issued. The search warrant affidavit had already been submitted prior to the sweep, so nothing observed in the house was added to the affidavit.

The warrant was issued shortly thereafter at 10:14 p.m. Sanchez also signed a written consent to search the house. During the search, officers found 36 more kilograms of cocaine (some of it hidden), tens of thousands of dollars in currency, multiple loaded firearms, 2000 rounds of ammunition, a bill counting machine, and drug sale paraphernalia (e.g., cellophane baggies, including some containing cocaine and other with marijuana, bags of rubber bands, a calculator, and a ledger book of calculations). Appellant later confessed that all the contraband was his and that he had been working as a delivery person for Mexican drug traffickers.

3. The Suppression Motion

Appellant moved to suppress the contraband seized from his truck and the house. Appellant chose not to testify, but Pellerin, Salazar, Stone, and Vascones testified for the prosecution. Appellant argued Pellerin's testimony that he had observed appellant using a cell phone while driving was not to be believed, and that the illegal traffic stop tainted the search warrant and the search of the residence. The prosecutor argued that not only was Pellerin's testimony credible, but it was corroborated by appellant's cell phone records which showed appellant had used the phone to make a call for 29 seconds from 6:22:25 p.m. to 6:22:54 p.m., and the police office unit records showed Pellerin made the stop about one minute later at 6:24 p.m.

The trial court expressly found Pellerin credible, that there was reasonable suspicion to stop and detain appellant for a Vehicle Code violation, and that appellant gave his consent to search the truck. The court concluded that not only had appellant acknowledged the violation to Pellerin at the time of the stop, but Pellerin's testimony was corroborated by the cell phone records. The court denied appellant's motion.

DISCUSSION

Appellant contends (1) Pellerin did not have reasonable suspicion to stop and detain him while he was driving his truck; (2) Pellerin did not obtain valid consent to search the truck; and (3) the search of the South Gate residence was unlawful. We reject each of these contentions.

The standard of review in this case is as follows: We view the record in the light most favorable to the ruling and defer to the trial court's factual findings, express or implied, where supported by substantial evidence. But in determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1130; People v. Williams (1988) 45 Cal.3d 1268, 1301.)

1. The Traffic Stop

A traffic stop and detention are justified when a police officer has a reasonable suspicion that the driver has violated the Vehicle Code or some other law - regardless of the officer's intent to investigate another crime. (Whren v. United States (1996) 517 U.S. 806, 810-813; People v. Miranda (1993) 17 Cal.App.4th 917, 924-929; see also People v. Gomez (2004) 117 Cal.App.4th 531, 537 [traffic stop valid even though officer was following defendant because he believed he was transporting drugs, based upon collective knowledge of officers participating in narcotics investigation].) After such a stop, an officer may detain the violator as long as necessary to discharge his or her duties related to the stop. (People v. Valencia (1993) 20 Cal.App.4th 906, 918.)

Pellerin testified he saw appellant holding his cell phone high, close to his face, and pressing the buttons on the phone to either send a text message or to make or receive a call. As driving while using a cell phone either as a telephone or for text messaging both constitute violations of the Vehicle Code (Veh. Code, §§ 23123, subd. (a) & 23123.5, subd. (a)), it does not matter which violation Pellerin believed appellant had committed. Either way, Pellerin had a reasonable suspicion appellant had violated the law. Thus, the stop and detention were valid, as the trial court found. (See In re Justin K. (2002) 98 Cal.App.4th 695, 699 [violation of Vehicle Code justified traffic stop even though officer did not know specific code section that was violated].)

Appellant nonetheless contends the cell phone and police unit records undermine Pellerin's credibility as to whether he actually saw appellant using a cell phone while driving. Appellant asserts that while police unit records show Pellerin stopped appellant at 6:24:12 p.m., on cross-examination Pellerin testified that this is when he initially called in his intention to make a stop, and that unit records further show that the actual stop did not happen until 6:27:01 p.m. Appellant surmises that because he made his call earlier (at 6:22:25 p.m., for 29.7 seconds) and Pellerin's testimony shows appellant was not stopped until 6:27:01 p.m., Pellerin could not have possibly seen him use his cell phone while driving, and thus testified untruthfully. We are not persuaded.

Rather than undermining Pellerin's testimony, the record supports it. Pellerin did testify that he reported his intention to make a traffic stop, which the dispatcher recorded at 6:24 p.m., according to the dispatcher's time clock. Pellerin also testified that 6:27 p.m. was not when he made the stop, but simply when the dispatcher indicated he had arrived for the stop. The record further demonstrates appellant drove off his driveway at about 6:16 p.m., that Pellerin spotted appellant in the truck about a quarter mile from appellant's home, and followed it for about another quarter mile until he radioed the dispatcher at about 6:24 p.m. that he was making a traffic stop. Given the undisputed fact that appellant made a call from his cell phone at 6:22:25 p.m. for about 30 seconds, the sequence of events clearly supports Pellerin's testimony that he saw appellant unlawfully using his cell phone while driving.

2. Consent to Search the Truck

Appellant argues Pellerin testified untruthfully about appellant giving consent to search the truck because "[a] person stopped for a traffic stop who has a large quantity of drugs in his vehicle is not going to voluntarily consent to a search of his vehicle." Since appellant did not testify, the only evidence on this issue was Pellerin's testimony, which the trial court expressly found credible. We have no authority to second-guess this credibility determination. (See People v. Cartwright (1999) 72 Cal.App.4th 1362, 1372, fn. 11; People v. Barnes (1986) 42 Cal.3d 284, 306 [credibility of a witness is the exclusive province of the trial judge]; People v. Ratliff (1986) 41 Cal.3d 675, 687 [trial court may accept an officer's testimony that accused freely consented to search even in the face of conflicting testimony].)

It was reasonable for Pellerin to ask appellant if he would consent to a search of his truck in light of the fact Pellerin specifically had been asked by a narcotics investigator to stop appellant if he committed a traffic violation. Despite appellant's insistence that such consent by someone with contraband is unlikely, the record squarely supports the fact that he did give his consent, something certainly not inconceivable. (See People v. Cartwright, supra, 72 Cal.App.4th at p. 1372; People v. James (1977) 19 Cal.3d 99, 113-114 [noting there may be a number of "rational reasons" for a suspect to consent to a search even though he knows the premises contain damaging evidence], disapproved on another ground in People v. Haskett (1982) 30 Cal.3d 841, 857, fn. 6.)

3. The Entry and Search of the Residence

Appellant contends officers had been surveilling appellant's house for two months and thus any exigency to enter the residence was fabricated when they arrested appellant and approached. He also asserts there was no exigency because they did not know whether there was anyone in the residence. These contentions are unpersuasive.

A warrantless entry into a residence is justified by exigent circumstances to prevent the imminent destruction of evidence which the police have probable cause to believe is inside the residence. (People v. Daughhetee (1985) 165 Cal.App.3d 574, 578-580; People v. Ramey (1976) 16 Cal.3d 263, 275-276; People v. Bennett (1998) 17 Cal.4th 373, 384-385; Ferdin v. Superior Court (1974) 36 Cal.App.3d 774, 781-782 [court upheld warrantless entry, protective sweep of rooms, and monitoring of occupants for two hours based upon exigency while search warrant was obtained].)

There was more than probable cause to believe contraband was in the residence. Pellerin found 20 kilograms of cocaine in appellant's truck, and appellant admitted he had much more in his house, including firearms and a large amount of drug money. The exigency arose when, just about five minutes after appellant was pulled over in his truck, officers saw appellant's wife go into the residence and quickly exit with a large bag. Detective Stone reasonably believed he had to immediately preserve the evidence in the residence because appellant might have alerted his wife, who was already in the house, or his cohorts of the traffic stop. It was reasonable for Stone to believe that any one of these co-conspirators could try to conceal, destroy, or remove any of the contraband in the house, or maybe even use the firearms described by appellant against the officers when they arrived with the search warrant. Such an emergency justified the warrantless entry and cursory sweep of the residence for occupants while officers waited for the search warrant to be issued. (See People v. Superior Court (1977) 74 Cal.App.3d 407, 419 [court upheld warrantless entry where there was probable cause to arrest the defendant and a possible confederate might enter the residence and remove or destroy evidence while a search warrant was obtained].)

Appellant also argues the search of the residence pursuant to the warrant was invalid because the underlying affidavit was tainted by inclusion of the contraband illegally seized from appellant's Ridgeline truck. Because we have found the traffic stop and subsequent search of the truck valid, appellant's argument is without merit.

4. Correction of the Abstract of Judgment

Respondent correctly notes that the charge in count 2 of the information (possession of an assault weapon) was dismissed as part of appellant's plea bargain, but nonetheless the abstract of judgment shows petitioner was convicted of this charge. Respondent asks that we correct this clear error. We agree.

DISPOSITION

The trial court shall prepare an amended abstract of judgment showing appellant pled guilty to count 1 (possession of 20 kilograms of cocaine for sale) and count 3 (possession of over $100,000 in drug money), and remove any indication that he pled guilty to count 2 (possession of an assault weapon). A copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

RUBIN, Acting P. J.

WE CONCUR:

FLIER, J.

GRIMES, J.


Summaries of

People v. Calderon

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 23, 2012
B226090 (Cal. Ct. App. Jan. 23, 2012)
Case details for

People v. Calderon

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. OSVALDO SANCHEZ CALDERON…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Jan 23, 2012

Citations

B226090 (Cal. Ct. App. Jan. 23, 2012)