P. v. Manuel CA1/1 ( 2013 )

Filed 3/26/13 P. v. Manuel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
THE PEOPLE,
Plaintiff and Respondent,
A136321
v.
TITO LAMAR MANUEL, (Napa County
Super. Ct. No. CR160460)
Defendant and Appellant.
Appellant and defendant Tito Manuel appeals following the judgment entered
following his no contest plea to unlawful taking or driving of a vehicle (Veh. Code
§ 10851, subd. (a)) and admission of two prison priors (Pen. Code § 667.5, subd. (b)).
His appellate 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.) Defendant was notified of his
right to file a supplemental brief, but has not done so. Upon independent review of the
record, we conclude no arguable issues are presented for review, and affirm the
judgment.
BACKGROUND
On February 15, 2012, Highway Patrol Officer Jack Kemper was riding with
Officers Insley and Burns, in a patrol car traveling northbound on Highway 29. The
officers noticed a 2008 Honda Accord traveling in the number two lane because the
driver was continually tapping the brakes. The officers followed the Honda as it exited
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the highway in Yountville. The Honda came to a stop at the intersection of California
Drive, but four feet beyond the limit line. The combination of the brake tapping and
failure to stop at the limit line were “an attention getter” because brake tapping is a
possible sign of impairment and the failure to stop at the limit line was a violation of
Vehicle Code section 22450. As the Honda made a right turn onto California,
Officer Insley, who was driving, activated the overhead lights. After proceeding through
one more intersection, the Honda pulled over and came to a stop.
Officer Kemper exited the patrol car and made contact with defendant. Kemper
immediately observed smoke in the car, and a cigar-type residue and a small amount of a
leafy green substance in a plastic bag on defendant’s lap, which Kemper suspected was
marijuana.
Upon running the license plate number of the Honda, Officer Kemper was advised
the car was reported stolen by the Vallejo Police Department. At this point,
Officer Kemper arrested defendant and searched him. He found a California
identification card bearing defendant’s name and three debit cards bearing the names of
other individuals. Officer Kemper also ran the VIN, and was again advised the car had
been reported stolen. He was also advised the license plate did not match the VIN and
the plate should have read 6EVH428. A search of the car then turned up a laptop
computer. In addition, a white powdery substance was found in the center console which
the officer believed was cocaine.
Officer Kemper then advised defendant of his Miranda1 rights, and defendant
agreed to speak with Kemper. Defendant said he had gotten the car from “Fred Smith,” a
“black dude” who lived in Vallejo. Smith had let defendant borrow the car, which
defendant had promised to return the following day. Defendant claimed the debit cards
were in the Honda when he took it and he had asked Smith if the cards were stolen and
Smith had said, “[N]o.”
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Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
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The following day, on February 16, 2012, the Napa County District Attorney filed
a five-count complaint alleging: felony identity theft (Pen. Code, § 530.5, subd. (a));
felony unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)); felony
receipt of stolen property (Pen. Code, § 496, subd. (a)); misdemeanor false evidence of
registration (Veh. Code, § 4462.5); and misdemeanor driving with a revoked or
suspended license (Veh. Code, § 14601.1, subd. (a)). As to the felony counts it was
further alleged defendant had suffered a prior felony conviction for which he had served a
prison term less than five years before incurring the new charges (Pen. Code, § 667.5,
subd. (b).) On March 6, the district attorney filed an amended, 13-count complaint
alleging: felony unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a));
felony receipt of stolen property, motor vehicle (Pen. Code, § 496d, subd. (a)); felony
sale/transportation/offer to sell a controlled substance (Health & Saf. Code, § 11352,
subd. (a)); felony possession of a controlled substance (Health & Saf. Code, § 11350,
subd. (a)); felony receiving stolen property (Pen. Code, § 496, subd. (a)); six counts of
felony identity theft (Pen. Code, § 530.5, subd. (a)); misdemeanor false evidence of
registration (Veh. Code, § 4462.5); and misdemeanor driving with a revoked or
suspended license (Veh. Code, § 14601.1, subd. (a)). As to the felony counts it was
further alleged defendant had suffered three prior felony convictions for which he had
served a prison term less than five years before incurring the new charges (Pen. Code,
§ 667.5, subd. (b)).
Following a preliminary examination on March 7, 2012, the trial court held
defendant to answer on counts 1 and 2, and the prison prior allegations. He was held not
to answer on counts 3 through 11. The district attorney filed a five-count information on
March 7, 2012: felony unlawful taking or driving of a vehicle (Veh. Code, § 10851,
subd. (a)); felony receipt of stolen property, motor vehicle (Pen. Code, § 496d, subd. (a));
felony receipt of stolen property (Pen. Code, § 496, subd. (a)); misdemeanor false
evidence of registration (Veh. Code, § 4462.5); and misdemeanor driving with a revoked
or suspended license (Veh. Code, § 14601.1, subd. (a)). As to the felony counts it was
further alleged defendant had suffered three prior felony convictions for which he had
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served a prison term less than five years before incurring the new charges (Pen. Code,
§ 667.5, subd. (b)). Defendant declined to waive his speedy trial rights.
On May 1, 2012, defendant moved to suppress all evidence from the traffic stop,
claiming he had been unlawfully detained. He also moved to dismiss (Pen. Code, § 995)
counts 3 and 4 for lack of evidence of knowledge, the ground on which the trial court had
dismissed count three of the amended complaint. The prosecutor opposed both motions.
As to the motion to suppress, the prosecution argued: the officer had reasonable
suspicion to detain defendant on the basis of the moving violation; defendant had no
legitimate expectation of privacy in a stolen vehicle; and the officer was aware defendant
was on parole and therefore subject to search.
The motions came on for hearing on May 11, 2012. As to his motion to suppress,
defendant argued that given the time of night and the position of the patrol car, the
officers could not have seen that he came to a stop beyond the limit line. Therefore, there
was no basis to effectuate a traffic stop. The prosecution argued the motion should be
denied on the basis of Officer Kemper’s testimony. The trial court credited the officer’s
testimony and denied the motion on the ground the moving violation provided a basis for
the detention. After reviewing the preliminary hearing transcript, the court also denied
the motion to dismiss.
The trial court then turned to a number of in limine matters, including Evidence
Code section 1101, subdivision (b), evidence. Defense counsel complained he had
received one police report only several weeks earlier and another the day before the
hearing. The prosecution stated there had been some confusion and delay in obtaining
the information, and the defense was provided copies of the reports as soon as the
prosecution received them. After hearing considerable argument, the trial court denied
defendant’s request to exclude the Evidence Code section 1101, subdivision (b), evidence
for untimely disclosure. The court then found good cause to continue the trial date,
despite defendant’s continued invocation of his speedy trial rights, to allow defense
counsel adequate time to prepare. The trial court also denied defendant’s request to
reduce bail or release him on his own recognizance.
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On June 1, 2012, at the readiness hearing, the court heard further in limine
motions, including on the Evidence Code section 1101, subdivision (b), evidence of two
relatively recent vehicle thefts of which defendant was acquitted. The prosecution argued
there were significant similarities, including the style and colors of the cars, and location
of the thefts, with the present case, and the evidence was relevant to the defendant’s
knowledge that the car was stolen. The defense argued the evidence and the fact he was
acquitted of the thefts was highly prejudicial and would essentially beg for a conviction
the “third” time. The trial court agreed, and ruled the evidence would be excluded.
Following this ruling, defendant entered into a negotiated disposition in which he
would plead no contest to a violation of Vehicle Code section 10851, subdivision (a),
admit two of the prison priors, and be sentenced to the low term of 16 months on the
section 10851 charge, to be served on supervision. Defendant initialed and signed a
change of plea form, acknowledging the rights he was waiving and setting forth the terms
of the bargain. The trial court duly queried defendant on the record that he had read and
understood the plea form, had had adequate time to consult with counsel, understood the
plea and was freely and voluntarily entering into it. The court then accepted defendant’s
plea and admissions.
On June 21, 2012, the trial court sentenced defendant in accordance with the terms
of the negotiated disposition. He was sentenced to a total of 40 months (16 months on
the Vehicle Code section 10851 charge and one year each, consecutively, on the prison
priors) and committed to the Napa County Department of Corrections under Penal Code
section 1170, subdivision (h)(5)(B). He was given 256 days of custody credits, and the
balance of the time suspended, with mandatory supervision imposed subject to
enumerated terms and conditions.
DISCUSSION
As a general rule, Penal Code section 1237.5 precludes an appeal from a judgment
of conviction after a no contest or guilty plea unless the defendant has applied for and
obtained a certificate of probable cause. There are two exceptions—where there is a
search and seizure issue as to which an appeal is proper under Penal Code section 1538.5,
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subdivision (m), and where the appeal pertains to postplea proceedings for purposes of
determining the degree of the crime or the penalty imposed. (People v. Shelton (2006)
37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant
did not request or obtain a certificate of probable cause, so he is not able to challenge the
validity of his plea or any other matter, save his motion to suppress, that preceded the
entry of his plea. (People v. Cole (2001) 88 Cal.App.4th 850, 868.) Upon review of the
proceedings pertaining to his motion to suppress, we conclude there is no viable issue on
appeal. The trial court could, and did, credit the testimony of the Highway Patrol Officer,
and his testimony established ample basis for the traffic stop. In all proceedings,
defendant was ably represented by counsel. He duly executed a waiver of rights form
that contained all necessary advisements as to his constitutional rights and admonitions as
to direct consequences of his plea. At the sentencing hearing, the trial court made all
necessary findings, imposed sentence in accordance with the negotiated disposition and
imposed all required fines and fees and reserved restitution.
DISPOSITION
After a full review of the record, we find no arguable issues and affirm the
judgment.
_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
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