People v. Gwartney CA2/8 ( 2015 )

Filed 10/29/15 P. v. Gwartney CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B263600
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA064367)
v.
JASON ANDREW GWARTNEY,
Defendant and Appellant.
APPEAL from orders of the Superior Court for the County of Los Angeles. Carol
Koppel and Kathleen Blanchard, Judges. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_______________________________
After his motion to suppress evidence was denied, defendant Jason Andrew
Gwartney pled no contest to a felony violation of Health and Safety Code section 11378
(possession for sale of methamphetamine). He appeals from the denial of his suppression
motions. Our independent review of the record (People v. Wende (1979) 25 Cal. 3d 436)
reveals no error.
Defendant filed his suppression motion shortly before the preliminary hearing. He
contended the consent he gave to the search during a traffic stop was vitiated by police
conduct “in violation of government rules, laws and policies,” and that police “did not
have the right to request a search.” The facts are these.
At the preliminary hearing, Deputy Sheriff Yesenia Delacruz testified that she and
her partner, Deputy Jepson, conducted a traffic stop on September 19, 2014, in Palmdale.
The driver (defendant) was not wearing a seat belt, and there was a long crack in the front
windshield blocking the driver’s view. The traffic stop occurred in the parking lot of the
EZ 8 Motel.
Deputy Delacruz, who was on the passenger side of defendant’s car, heard Deputy
Jepson tell defendant the reason for the stop, but she did not record that in her report of
the incident. She did not remember whether Deputy Jepson asked to see defendant’s
license and registration. Neither officer wrote a traffic ticket for driving without a
seatbelt or driving with a cracked windshield.
Instead, Deputy Jepson asked defendant if he was on probation or parole, and
defendant said he was not. Deputy Jepson then asked defendant whether there was
“anything illegal on him,” and defendant said “no.” Deputy Jepson asked defendant for
consent to search his person, and defendant consented.
Defendant then got out of the car and was searched. Deputy Jepson found a
plastic baggy with a substance resembling methamphetamine in defendant’s pocket. This
was later found to be 0.26 grams of crystalline solid substance containing
methamphetamine.
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In response to a question from Deputy Jepson, defendant said he was staying at the
EZ 8 Motel, Room 232. Deputy Jepson asked defendant “whether it would be okay to
search the motel room,” and defendant consented. The officers went to the motel room,
where several other persons were present. Police recovered some marijuana, three bags
of methamphetamine, a small baggy with cocaine, two digital scales, paraphernalia, a
fully loaded revolver, ammunition in an open safe, keys to the safe, and a rental
agreement in defendant’s name.
After Deputy Delacruz testified, defense counsel argued the evidence should be
suppressed because the officers did not attend to the business of writing a traffic citation.
Instead, counsel contended, the officers went on an improper “fishing expedition” and
had no right to ask for consent to search, citing such cases as People v. McGaughran
(1979) 25 Cal. 3d 577, 586 (where a police officer has stopped a motorist for a traffic
violation, “and . . . has already detained the offender for the period necessary to perform
his functions arising from the violation,” the officer cannot thereafter lawfully detain him
“for an additional period of time solely for the purpose of conducting a warrant check”)
and People v. Lusardi (1991) 228 Cal. App. Supp. 3d 1, 5 (relying on McGaughran to
conclude that officers making a proper traffic stop “cannot, on a mere hunch, properly
ask for consent to search”; the consent obtained “is vitiated because the detention is
unlawfully continued after any lawful and proper purpose has passed”).
The magistrate (Judge Carol Koppel) denied the suppression motion, observing:
“[C]ertainly my experience . . . says no[,] the consent is the consent[,] they can go ahead
and do it . . . . So with some trepidation the court is denying the motion.”
The district attorney filed an information charging defendant with four felony
counts: possession of a controlled substance with a firearm, possession for sale of
methamphetamine, possession for sale of cocaine, and possession of a firearm by a felon.
Defense counsel then moved to set aside the information under Penal Code
section 995, based on the magistrate’s denial of the suppression motion. Defendant
contended that the police officers did not undertake any traffic duties, “which is the same
as prolonging the stop beyond time required to getting the defendant’s personal
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information and to write the citation,” and that it was a “pretext stop.” The trial court
(Judge Kathleen Blanchard) denied the motion, stating that “the judge who heard the
preliminary hearing and heard the [Penal Code section] 1538.5 certainly had – whether it
was well articulated or not, I think the denial of the 1538.5 motion was well-taken.”
Defendant pled no contest to a single count of possession for sale of
methamphetamine, in return for the middle term of two years, concurrent with a two-year
term in another case, for a total of two years in county jail. The court sentenced
defendant accordingly, and awarded total credits for time served of 416 days (208 actual
and 208 conduct). The court ordered defendant to register as a narcotics offender; to
provide a DNA sample; and to pay the following fines: a restitution fine of $400; a
community supervision revocation restitution fine of $400 (stayed); a court security fee
of $40; a criminal conviction fee of $30; a lab analysis fee of $50; a drug program fee of
$150; and penalty assessments.
Defendant filed a timely appeal from the denial of his motions to suppress
evidence.
Defendant’s court-appointed counsel filed a brief requesting this court’s
independent review of the record under People v. Wende, supra, 25 Cal. 3d 436.
Counsel’s declaration of the same date stated that he discussed the matter with a staff
attorney at the California Appellate Project; wrote to defendant explaining his evaluation
of the record on appeal and his intention to file a Wende brief; sent defendant the record
on appeal and a copy of the Wende brief; and informed defendant of his right to file a
supplemental brief within thirty days. No supplemental brief has been filed.
We have reviewed the record on appeal, and find no error in the denial of the
suppression motion. (See People v. Gallardo (2005) 130 Cal. App. 4th 234, 239
[requesting consent to search does not require reasonable suspicion of wrongdoing “if
requesting consent does not otherwise unduly prolong the traffic stop”; there was “no
indication . . . the stop was prolonged in any manner” where “the only evidence offered
was that the time that elapsed from the initial contact to requesting consent to search was
as little as two minutes”; defendant “was, of course, free to decline consent”]; see also
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Whren v. United States (1996) 517 U.S. 806, 813, 819 [if there is probable cause to
believe a traffic violation has occurred, the police officer’s subjective motivation for
making the stop is irrelevant]; People v. Tully (2012) 54 Cal. 4th 952, 981 [officer “was
permitted to ask defendant about matters unrelated to the traffic stop so long as the
questioning did not prolong the stop beyond the time required to cite defendant”;
defendant was questioned and consented to a search while another officer was working
on a traffic citation, not after its completion].)
In short, we are satisfied that defendant’s appointed counsel has fully complied
with his responsibilities and that no arguable issues exist. (People v. Kelly (2006)
40 Cal. 4th 106, 109-110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The order is affirmed.
GRIMES, J.
We concur:
BIGELOW, P. J.
RUBIN, J.
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