P. v. Estrada 1/25/11 CA2/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B221094

Case Date: 04/20/2011

Preview:Filed 1/25/11 P. v. Estrada CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. LUIS ERNESTO ESTRADA, Defendant and Appellant.

B221094 (Los Angeles County Super. Ct. No. BA347251)

APPEAL from a judgment of the Superior Court of Los Angeles County. Edmund Willcox Clarke, Jr., and Drew E. Edwards, Judges. Affirmed. Christopher A. Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent. _________________________________

Defendant Luis Estrada appeals from the judgment entered following a jury trial in which he was convicted of possession of a firearm by a felon and carrying a loaded, unregistered firearm. Defendant contends the trial court erred by denying his motion to suppress the gun. We conclude that although the gun was seized in violation of the Fourth Amendment, it was nevertheless admissible under the good faith exception to the exclusionary rule. Accordingly, we affirm. BACKGROUND Defendant was arrested in Los Angeles on the night of September 23, 2008, after Los Angeles Police Department Officer Guillermo Calleros conducted a warrantless search of defendant`s truck and found a loaded gun under the driver`s seat floor mat. Defendant filed a motion to suppress the gun as the product of an unconstitutional search. Calleros was the sole witness at the evidentiary hearing on defendant`s suppression motion. Calleros testified that he and his partner were on patrol when he saw defendant leaning against the right rear passenger door of a pickup truck parked outside a bar. Another man was standing near defendant. Both of the doors on the passenger side of the truck were open. Calleros saw defendant drinking tan liquid from a large square bottle that looked like one of those Costco bottles of Jack Daniels. Calleros explained that he was familiar with the style of bottle because he had previously purchased such big, square bottles of Jack Daniels. It thus appeared to Calleros that defendant was violating the law by drinking alcohol in public. As Calleros and his partner got out of their patrol car and approached the truck, defendant threw the bottle into the truck through the rear passenger door, closed both of the open truck doors, locked the truck, activated the truck`s alarm, and put the keys away on his person. Calleros handcuffed defendant and put him on the sidewalk. Calleros then asked defendant for the keys to the truck to verify the container. Calleros opened the truck and found a good-sized bottle of Jack Daniels in the back seat. He smelled the contents of the bottle and found the aroma to be exactly like Jack Daniels. After finding the bottle, Calleros continued to look in the car to see if there was [sic] any other

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alcoholic beverages and what not. He also explained that he continued to search because it was part of his practice and his job to make sure there is no immediate threat, no weapons, any contraband . . . . Calleros made [his] way to the front driver`s side compartment area, . . . noticed that the carpet was slightly--I don`t know slightly canted up or like there was something underneath it, the mat, the floor mat. So Calleros lifted the mat and found the gun beneath it. The trial court denied defendant`s suppression motion, apparently on the theory that the gun was found in a search incident to defendant`s arrest for drinking in public, although the court referred to reasonable suspicion to detain defendant. After the United States Supreme Court decided Arizona v. Gant (2009) __ U.S. __ [129 S.Ct. 1710] (Gant) on April 21, 2009, defendant sought reconsideration of the denial of his suppression motion. The trial court ruled that Gant did not apply retroactively to the search of defendant`s truck conducted in 2008. At trial, Calleros testified that he saw defendant standing next to an open truck and drinking alcohol outside a bar, searched defendant`s truck, and found a loaded gun under the floor mat. Calleros determined that the gun was registered to another person, who had reported it stolen. The parties stipulated that defendant had previously been convicted of a felony. At the police station, defendant told Calleros that he was the manager of the bar and had confiscated the gun from an intoxicated person in the bar. Defendant`s sister testified that she owned the bar and defendant and his wife worked there for her. Defendant and his wife Ana both testified that on the night of September 23, 2008, a man who looked like a gang member and seemed to be intoxicated came into the bar. Ana saw a bulge at the man`s waist and thought it was a pistol. She signaled defendant, who asked to see what the man had at his waist. The man said he had a gun and wanted a beer. Defendant told the man they could not serve him a beer unless he surrendered the gun. The man eventually handed his gun over to defendant, who took the gun outside to his pickup truck for safekeeping because there was no safe storage place for it inside the bar. The police arrived as defendant was walking back into the bar. Defendant admitted that

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there was a bottle of whisky in his truck, but denied that he was drinking alcohol outside. Bar patron Giovany Marroquin Munoz testified that he was present in the bar on the night of September 23, 2008, and saw defendant take a gun from a patron and put it in a truck just before the police arrived. The jury convicted defendant of possession of a firearm by a felon and carrying a loaded, unregistered firearm. Defendant admitted an allegation that he had a prior strike conviction. The trial court sentenced him to a second strike term of 32 months in prison. DISCUSSION Defendant contends that the trial court erred by denying his motion to suppress the gun because no exception to the search warrant requirement justified Calleros`s entry into and search of defendant`s truck. The Attorney General argues that the entry and search were valid as a search incident to defendant`s arrest under Gant, supra, __ U.S. __ [129 S.Ct. 1710], but if the search was invalid, the evidence was nevertheless admissible under the good faith exception to the exclusionary rule because the search occurred before Gant was decided, and Calleros relied upon the existing authority at the time, New York v. Belton (1981) 453 U.S. 454 [101 S.Ct. 2860] (Belton). The Fourth Amendment to the United States Constitution protects people from unreasonable government intrusions into their legitimate expectations of privacy. A warrantless search is presumed to be illegal. (Mincey v. Arizona (1978) 437 U.S. 385, 390 [98 S.Ct. 2408].) The prosecution always has the burden of justifying a warrantless search or seizure by proving that it fell within a recognized exception to the warrant requirement. (People v. Williams (1999) 20 Cal.4th 119, 130; People v. James (1977) 19 Cal.3d 99, 106.) In ruling upon a motion to suppress, the trial court judges the credibility of the witnesses, resolves any conflicts in the testimony, weighs the evidence, and draws factual inferences. We will uphold the trial court`s findings, express or implied, on such matters if they are supported by substantial evidence, but we independently review whether the

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search or seizure was reasonable under the Fourth Amendment. (People v. Alvarez (1996) 14 Cal.4th 155, 182; People v. Glaser (1995) 11 Cal.4th 354, 362.) a. Belton and Gant When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety. (Virginia v. Moore (2008) 553 U.S. 164, 178 [128 S.Ct. 1598].) This is true without regard to the nature of the offense and even if, under state or local law, the officers should have only cited the person instead. (Id. at pp. 173

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