People v. Dominguez CA6 ( 2014 )


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  • Filed 10/30/14 P. v. Dominguez CA6
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
    SIXTH APPELLATE DISTRICT
    THE PEOPLE,                                                          H040302
    (Monterey County
    Plaintiff and Respondent,                                   Super. Ct. No. SS121738A)
    v.
    RUBEN AYALA DOMINGUEZ,
    Defendant and Appellant.
    After a vehicle stop for speeding, defendant Ruben Ayala Dominguez was found
    in possession of marijuana and a loaded nine-millimeter handgun. The drugs and firearm
    were found during a search of the vehicle, which was prompted by the odor of marijuana.
    Following an unsuccessful motion to suppress the evidence seized during the warrantless
    search, Dominguez pleaded no contest to carrying a concealed firearm in a vehicle. (Pen.
    Code, § 25400, subd. (a)(3).)1 As part of the negotiated plea agreement, Dominguez
    admitted the special allegation that he was not the registered owner of the firearm (id.,
    subd. (c)(6)) and that the firearm was loaded. The court sentenced Dominguez to felony
    probation, as called for by the plea agreement.
    Dominguez’s counsel has filed an opening brief in which no issues are raised and
    asks this court for an independent review of the record as required by People v. Wende
    (1979) 
    25 Cal. 3d 436
    . We notified Dominguez of his right to submit a written argument
    on his own behalf, but he has not done so.
    1
    Further unspecified statutory references are to the Penal Code.
    Pursuant to Wende, we reviewed the entire record and have concluded that, with
    the exception of one error that we will address below, there are no arguable issues on
    appeal. As required by People v. Kelly (2006) 
    40 Cal. 4th 106
    , 110, we will provide “a
    brief description of the facts and procedural history of the case, the crimes of which
    defendant was convicted, and the punishment imposed.” We will further include
    information about aspects of the trial court proceedings that might become relevant in
    future proceedings. (Id. at p. 112.)
    I.     FACTUAL BACKGROUND
    Our summary of the facts is taken from the testimony at the March 15, 2013
    suppression hearing.
    On August 17, 2012, California Highway Patrol Officers Michael Palma and
    Charles Rodriguez pulled Dominguez’s vehicle over for speeding. Officer Palma
    testified that Officer Rodriguez, who was driving their marked patrol unit, determined
    that Dominguez’s vehicle was travelling at 78 miles per hour in a 65 mile-per-hour zone
    by maintaining the same speed as the vehicle for five to eight miles.
    When Officer Palma approached the passenger side of the vehicle he smelled the
    odor of marijuana. The driver, who Officer Palma identified as Dominguez, admitted to
    having a small amount of marijuana in the vehicle. Officer Palma asked Dominguez to
    exit the vehicle, which he did. At Officer Palma’s request, Rafael Garcia, a deputy
    sheriff with the Monterey County Sheriff’s Department who had arrived on the scene
    shortly after the traffic stop, searched the vehicle. Deputy Garcia testified that he smelled
    marijuana upon approaching the vehicle and saw a marijuana pipe containing marijuana
    residue in the ashtray. Deputy Garcia opened a closed backpack sitting on the front
    passenger seat and found a prescription bottle containing marijuana and a second
    marijuana pipe. Under the driver’s seat Deputy Garcia found a box of ammunition.
    Deputy Garcia lifted up the floorboard on the passenger’s side because it appeared to
    have been tampered with and found a loaded nine-millimeter handgun under the
    2
    floorboard. Deputy Garcia arrested Dominguez.
    II.     PROCEDURAL BACKGROUND
    The Monterey County District Attorney filed an information on October 22, 2012,
    charging Dominguez with one count of carrying a concealed firearm in a vehicle (§
    25400, subd. (a)(3), count 1) and one count of misdemeanor possession of over 28.5
    grams of marijuana (Health & Saf. Code, § 11357, subd. (c), count 2). The first count
    included a special allegation that Dominguez was not the registered owner of the firearm
    (§ 25400, subd. (a)(6)).
    On November 1, 2012, Dominguez moved for substitution of his appointed
    counsel under People v. Marsden (1970) 
    2 Cal. 3d 118
    (Marsden). During a hearing in
    closed court, Dominguez complained about what he perceived to be appointed counsel’s
    unavailability and lack of interest in his case. Counsel explained that she had been on
    vacation and had completed three jury trials in the span of approximately five weeks.
    Concluding that counsel’s schedule had caused the communication issues and that there
    had not been a breakdown in the attorney-client relationship, the court denied the
    Marsden motion.
    Dominguez filed a motion to suppress on February 11, 2013, in which he argued
    that the search of his vehicle violated his Fourth Amendment rights. The People opposed
    Dominguez’s motion, urging that the odor of marijuana emanating from Dominguez’s
    vehicle furnished probable cause to search the vehicle for contraband under the
    automobile exception to the warrant requirement. Following a hearing at which Officer
    Palma and Deputy Garcia testified, the court denied the suppression motion on March 15,
    2013.
    The case was set for a jury trial. Four days before the trial was set to begin, the
    district attorney filed an amended information. Count 1, carrying a concealed firearm in
    a vehicle (§ 25400, subd. (a)(3)), and count 2, misdemeanor possession of over 28.5
    grams of marijuana (Health & Saf. Code, § 11357, subd. (c)), remained unchanged. The
    3
    amended information added a third count, misdemeanor transportation of not more than
    28.5 grams of marijuana (id., § 11360, subd. (b)).
    On August 26, 2013, before trial began, the deputy district attorney told the court
    that the information was amended because “[i]t was pled as a [Health and Safety Code
    section] 11357[, subdivision] (c), which is more than 28.5 grams. This was less than that.
    We’ve amended to add [Health and Safety Code section] 11360, which is possession of
    less than an ounce [of marijuana] while being transported in a vehicle.”
    Before addressing the amended information, the court considered Dominguez’s
    request for a two-week continuance to hire private counsel or, in the alternative, for
    substitution of his appointed counsel under Marsden. The court denied the motion for a
    continuance, noting that it had previously granted a defense motion to continue and
    reasoning that the motion was a delay tactic. Following a second Marsden hearing, the
    court denied Dominguez’s motion for new appointed counsel. During the Marsden
    hearing, Dominguez stated that appointed counsel was negative towards him and failed to
    explain things to him, including the People’s offer for a plea bargain. The court engaged
    in a dialogue with Dominguez about his reluctance to go to trial or to plead because of
    the consequences of a conviction. The court denied the Marsden motion, reasoning that
    Dominguez’s goal was delay and that, despite communication problems, there had been
    no mutual breakdown in the relationship between attorney and client.
    The court then ordered a recess to allow Dominguez and his appointed counsel to
    discuss the plea offer. When the court reconvened, Dominguez waived formal
    arraignment on the amended information and entered into a plea agreement. Pursuant to
    the plea agreement, Dominguez pleaded no contest to carrying a concealed firearm in a
    vehicle in violation of section 25400, subdivision (a)(3), a felony, as charged in count 1.
    Dominguez also admitted that the firearm was loaded and the special allegation that he
    was not the registered owner of the firearm, in violation of section 25400, subdivision
    (a)(6).
    4
    Dominguez asked the court whether his violation of section 25400, subdivision
    (a)(3) “could be dropped down, if I’m doing good, to a misdemeanor.” The court
    responded, “[w]e’re not going to have a motion to reduce something to a misdemeanor
    right now,” but explained that Dominguez could apply to have the offense reduced to a
    misdemeanor in the future.
    After accepting Dominguez’s plea, the court suspended imposition of sentence,
    placed Dominguez on formal probation, and imposed various fines, fees, and probation
    conditions. Among the probation conditions imposed by the court was a prohibition
    against “remain[ing] in any vehicle either as a passenger or driver which is known or
    suspected to be stolen or contains any firearm or illegal weapon.”
    Dominguez filed a timely notice of appeal, which indicated that his appeal was
    based on the denial of a motion to suppress and challenged the validity of the plea or
    admission. The trial court granted Dominguez’s request for a certificate of probable
    cause on November 5, 2013. In his request for a certificate of probable cause,
    Dominguez recounted the traffic stop that led to his arrest and stated that he had not been
    speeding, the vehicle did not smell of marijuana, and the gun and marijuana belonged to
    his family members.
    III.   DISCUSSION
    In examining the entire record, we identified an arguable issue related to the
    probation condition barring Dominguez from “remain[ing] in any vehicle either as a
    passenger or driver which is known or suspected to be stolen or contains any firearm or
    illegal weapon.” Accordingly, we asked for and received additional briefing from the
    parties as to whether that probation condition is unconstitutionally vague.
    As a threshold matter, we note that while Dominguez did not challenge the
    condition in the trial court, we nevertheless may review its constitutionality as a matter of
    law without reference to the sentencing record. (In re Sheena K. (2007) 
    40 Cal. 4th 875
    ,
    888-889.) Nor does the fact that Dominguez’s notice of appeal did not state the appeal
    5
    was based on his sentence preclude us from considering the constitutionality of the
    probation condition. (6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal
    Appeal, § 163, p. 444 [“[a]n appeal is not limited to issues stated in the notice of
    appeal”]; People v. Jones (1995) 
    10 Cal. 4th 1102
    , 1109 disapproved of on other grounds
    by In re Chavez (2003) 
    30 Cal. 4th 643
    [defendant’s failure to include claim regarding
    erroneous imposition of probation conditions in notice of appeal did not render that claim
    noncognizable on appeal].)
    To the extent the condition at issue requires Dominguez to speculate as to whether
    a vehicle is stolen, it “fails to provide [him] with adequate notice of what is expected of
    him when he lacks actual knowledge that a” vehicle is stolen. (People v. Gabriel (2010)
    
    189 Cal. App. 4th 1070
    , 1073.) As such, the condition is unconstitutionally vague on its
    face. The condition also is subject to a facial challenge on vagueness grounds because it
    requires Dominguez to vacate any vehicle that “contains any firearm or illegal weapon”
    regardless of whether he is aware of the weapon’s presence. For the condition to pass
    constitutional muster, an express knowledge requirement must be added. (In re Victor L.
    (2010) 
    182 Cal. App. 4th 902
    , 912-913 [modifying probation condition to prohibit
    knowing presence of weapons or ammunition].)
    IV.    DISPOSITION
    The probation condition stating “Not remain in any vehicle either as a passenger
    or driver which is known or suspected to be stolen or contains any firearm or illegal
    weapon” is modified to read “Not remain in any vehicle either as a passenger or driver
    which he knows to be stolen or to contain any firearm or illegal weapon.”2 As modified,
    the judgment is affirmed.
    2
    Following oral argument, the parties stipulated to this revised condition.
    6
    Premo, Acting P.J.
    WE CONCUR:
    Elia, J.
    Mihara, J.
    

Document Info

Docket Number: H040302

Filed Date: 10/30/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021