People v. Villela CA2/7 ( 2021 )

Filed 4/12/21 P. v. Villela CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306741
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA150802-02)
v.
GEOVANNY VILLELA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Teresa T. Sullivan, Judge. Affirmed.
Glenn L. Savard, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________
Geovanny Villela appeals the superior court’s order
revoking his probation and sentencing him to two years in state
prison for second degree robbery after finding he had violated the
conditions of his probation by being in possession of a loaded
firearm. No arguable issues have been identified following
review of the record by Villela’s appointed appellate counsel or
our own independent review. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a negotiated agreement Villela pleaded no
contest in August 2019 to one count of second degree robbery.
(Pen. Code, § 211.) Imposition of sentence was suspended, and
Villela was placed on three years of formal probation with
various conditions, including that he serve 365 days in county jail
and obey all laws and court orders.
On May 22, 2020 Villela was arrested for being a felon in
possession of a handgun. (Pen. Code, § 29800.) His probation
was provisionally revoked, and a probation revocation hearing
was set to be heard concurrently with the preliminary hearing on
the new criminal charge.
At the outset of the hearing Villela moved pursuant to
Penal Code section 1538.5 to suppress the firearm evidence as
the product of an illegal search and seizure. According to the
evidence introduced at the hearing, which included police
bodycam footage, two Los Angeles police officers initiated a traffic
stop of the car in which Villela was a passenger for not having a
front license plate. One of the officers testified he smelled burnt
marijuana as he approached the car. He asked the driver if he
had marijuana in his possession; the driver responded he had a
small amount and showed the officer a small closed container
that the driver said contained less than an ounce of marijuana.
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The officers called for backup and detained the driver and
Villela for a narcotics investigation. Villela was asked by one of
the officers to step out of the car. When he did, he was
handcuffed. At that point Villela told the officer he had a firearm
in his possession. The officer removed a loaded gun from Villela.
The hearing took place on July 8, 2020. Three weeks
earlier the court of appeal in People v. Johnson (2020)
50 Cal.App.5th 620 had held missing registration tags, the odor
of marijuana and visual observation of a small amount
(approximately two grams) of marijuana in a closed plastic bag
did not establish probable cause to search the defendant’s parked
car. (Id. at p. 623.) The Johnson court distinguished cases
decided when nonmedical use of marijuana was unlawful, which
had held the odor of marijuana created probable cause (e.g.,
People v. Waxler (2014) 224 Cal.App.4th 712), explaining the
medical marijuana law did not affect probable cause, as does
Health and Safety Code section 11362.1, subdivision (c), which
provides, “Cannabis and cannabis products involved in any way
with conduct deemed lawful by this section are not contraband
nor subject to seizure, and no conduct deemed lawful by this
section shall constitute the basis for detention, search, or arrest.”
Conduct deemed lawful under section 11362.1, subdivision (a)(1),
the court of appeal emphasized, includes possession and
transportation of up to 28.5 grams of marijuana by individuals
21 years or older. (Johnson, at pp. 628-229.)
After discussing the Johnson decision with counsel, the
court granted Villela’s motion to suppress evidence. The People
acknowledged they were unable to proceed with the criminal
charge, and the court dismissed the case.
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The court declined to exclude the firearm evidence from the
probation violation hearing, noting People v. Johnson, supra,
50 Cal.App.5th 620, had been decided after the search and
seizure at issue in this case and finding there had not been
egregious misconduct by law enforcement. To the contrary, the
court stated it felt the police officers and Villela had all acted
reasonably under the circumstances. The court found Villela in
violation of his probation and sentenced him to two years (the
lower term) in state prison with 461 days of custody credit.
Villela filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent Villela on appeal. After
reviewing the record, counsel filed a brief raising no issues. On
November 30, 2020 counsel wrote Villela and advised him he
would have 30 days after counsel filed his no-issue brief within
which to submit any contentions or issues he wished us to
consider. On November 30, 2020 counsel notified Villela the brief
had been filed. We sent a similar notice to Villela concerning his
right to file a supplemental brief on November 30, 2020. We have
received no response.
The court of appeal in People v. Lazlo (2012)
206 Cal.App.4th 1063, 1067, held, even though evidence may
have been seized in violation of the Fourth Amendment, the
exclusionary rule did not apply at probation revocation hearings
so long as the police conduct was not egregious. The court
explained that Proposition 8, passed by the voters in 1982,
permits the exclusion of relevant, but unlawfully obtained
evidence, only if exclusion is required by the United States
Constitution. (See In re Lance W. (1985) 37 Cal.3d 873, 890.)
Under federal constitutional principles evidence seized in
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violation of the Fourth Amendment is admissible at a probation
revocation hearing unless the police conduct in effectuating the
search shocks the conscience. (Lazlo, at p. 1070.)
The trial court’s decision to admit at the revocation hearing
the firearm evidence based on its finding the police officers who
detained Villela and seized the weapon in his possession had not
acted unreasonably in doing so was amply supported by the
evidence and well within its discretion.
We have reviewed the entire record in this case and are
satisfied appellate counsel for Villela has complied with counsel’s
responsibilities and there are no arguable issues. (Smith v.
Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006)
40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436,
441-442.)
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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