People v. Martinez CA2/7 ( 2024 )

Filed 10/10/24 P. v. Martinez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B336928
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA099475)
v.
JOSE MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David Walgren, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________________
The trial court convicted Jose Martinez on a no contest plea
of possessing a controlled substance while armed with a loaded,
operable firearm, in violation of Health and Safety Code section
11370.1, subdivision (a). He appeals from the judgment after the
trial court denied his motion to suppress under Penal Code
section 1538.5.
We appointed counsel to represent Martinez in this appeal.
Martinez’s appointed counsel reviewed the record and did not
identify any arguable issues. Nor, after reviewing the record
independently, have we. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 4, 2022 San Fernando Police Officer Nicholas
Murillo observed a gray car parked in front of an auto repair
business. The police had received complaints about the auto
repair business selling nitrous oxide to teenagers who were
ingesting it. Officer Murillo observed two men placing a tank of
nitrous oxide in the trunk of the gray car and driving away.
Officer Murillo followed the car. When the officer noticed
the vehicle had no front license plate, he initiated a traffic stop.
Officer Murillo saw four men in the car, including Martinez.
One of the passengers got out of the car from the back left
passenger seat, but the officer ordered him to get back into the
car. Officer Murillo asked whether the individuals in the car had
any drugs or a prior criminal history. The driver said that “we
are all innocent people here,” that they had not made the nitrous
oxide into “ballons yet,” and that “you caught us too early.” When
the officer asked if they were going to use the nitrous oxide, they
responded “oh, yeah” and “not anymore.”
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Backup officers arrived. The driver of the car refused to
allow the officers to search the car. After conducting a warrant
check, the officers determined the passenger in the right front
seat was on probation for possession of a firearm. The officers did
not learn anything about Martinez because he gave them a false
name and a false date of birth.
Officers observed that the passenger in the front seat had a
gun and that there was an empty gun holster in a compartment
on the driver’s door. Officers also observed a bulge in Martinez’s
stomach area and ordered him and the others out of the car. As
Martinez was getting out of the car, a gun fell to the floor.
Officers found a second gun in Martinez’s waistband.
The People charged Martinez with two counts of possession
of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)),
five counts of unlawful possession of ammunition by a felon (id.,
§ 30305, subd. (a)(1)), two counts of carrying a loaded handgun
while in a vehicle (id., § 25850, subd. (a)), one misdemeanor count
of giving false information to a police officer (id., § 148.9,
subd. (a)), one count of possessing a controlled substance while in
prison (id., § 4573.6, subd. (a)),1 and one count of possessing a
controlled substance with a loaded firearm (Health & Saf. Code,
§ 11370.1, subd. (a)).
Martinez filed a motion to suppress all physical evidence
seized during the 23-minute traffic stop, including evidence of the
two firearms and the ammunition. Martinez argued police
obtained the evidence in violation of the Fourth Amendment
because the traffic stop was unduly prolonged beyond the time
1 The People alleged Martinez possessed methamphetamine
“while in the San Fernando City Jail without authorization.”
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reasonably required to issue a ticket for not having a license
plate. (See Rodriguez v. United States (2015) 575 U.S. 348, 354
[“Because addressing the infraction is the purpose of the stop, it
may ‘last no longer than is necessary to effectuate th[at]
purpose.’”]; People v. Ayon (2022) 80 Cal.App.5th 926, 936
[same].)
The trial court denied the motion. The trial court ruled
“[t]he officer clearly had reasonable suspicion to stop the car, not
only for the possible nitrous investigation, but also for the front
plate.” The court also ruled that, “unlike Rodriguez and Ayon,
within just three and four minutes the officer, in this court’s
opinion, has probable cause to believe specifically that they’re
violating Penal Code section 381, subdivision (b)[2] . . . .
Arguably, they’re also conducting an investigation . . . [and] they
are making admissions implicitly that they have it to get high,
that he stopped them too early. . . . The officer absolutely had a
reasonable ground for belief of guilt based on his own
observations and the admissions made by the individuals in the
vehicle.”
Martinez pleaded no contest to possession of a controlled
substance while armed with a loaded, operable firearm. The trial
2 Which states: “Any person who possesses any substance or
material, which the State Department of Public Health has
determined . . . has toxic qualities similar to toluene, with the
intent to breathe, inhale, or ingest for the purpose of causing a
condition of intoxication, elation, euphoria, dizziness, excitement,
irrational behavior, exhilaration, satisfaction, stupefaction, or
dulling of the senses or for the purpose of, in any manner,
changing, distorting, or disturbing the audio, visual, or mental
processes, or who is under the influence of such substance or
material is guilty of a misdemeanor.”
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court dismissed the remaining counts. The court sentenced
Martinez to three years in prison, and Martinez timely appealed.
DISCUSSION
We appointed counsel to represent Martinez in this appeal.
After reviewing the record, counsel filed a brief raising no issues.
On August 2, 2024 appointed counsel advised Martinez that he
could personally submit any contentions or issues he wanted the
court to consider. Counsel also sent Martinez the transcripts of
the record on appeal and a copy of the appellate brief. On
August 5, 2024 this court also sent Martinez a letter advising
him that within 30 days he could submit a supplemental brief or
letter stating any grounds for an appeal, or contentions, or
arguments he wanted us to consider. We did not receive a
response from Martinez.
We have examined the record and are satisfied that
appellate counsel for Martinez has complied with his
responsibilities and that 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.)
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DISPOSITION
The judgment is affirmed.
SEGAL, Acting P. J.
We concur:
FEUER, J.
STONE, J.
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