P. v. Macias 7/23/07 CA2/7

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State: California

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

Docket No: B191006

Case Date: 10/10/2007

Preview:Filed 7/23/07 P. v. Macias CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. CELIA R. MACIAS, Defendant and Appellant.

B191006 (Super. Ct. No. VA090686)

APPEAL from a judgment of the Superior Court of Los Angeles County. Cynthia Rayvis, Judge. Affirmed. Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

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Celia Macias appeals from a judgment entered after a jury found her guilty of possessing cocaine for sale. Macias contends evidence the police obtained from her "dayplanner" (or date book) and an intercepted cellular telephone call violated her Fourth Amendment right to be free from unreasonable searches and seizures, and the failure to exclude this evidence at trial violated her Fourteenth Amendment right to due process. Macias also contends the trial court violated her Sixth Amendment right to a jury trial when it imposed an upper term sentence on the offense based on factual findings not made by the jury. We conclude the search was reasonable and the trial court did not err in imposing the upper term sentence. Accordingly, we affirm.
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FACTS AND PROCEEDINGS BELOW

As Macias acknowledges on appeal, at the time of the charged offense she was on probation in another case due to an April 4, 2005 conviction for possession of a controlled substance (Case No. VA087939). As a condition of her probation, Macias agreed to submit her "person and property to a search at any time of the day or night by any law enforcement officer or probation officer with or without a warrant or probable cause." At about 4:20 p.m. on August 11, 2005, the date of the incident at issue here, two Huntington Park Police Department officers arrived at a hotel room registered to Macias to serve her with an arrest warrant. After identifying themselves and entering the room, the officers observed Macias attempting to conceal a white object in her pants. The officers grabbed her hand and recovered more than six grams of rock cocaine. The officers arrested Macias and proceeded to search her hotel room. The officers recovered
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Health and Safety Code section 11351.5. Health and Safety Code section 11350, subdivision (a). 3 Apparently the warrant related to a probation violation for possession of a controlled substance.
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a "dayplanner" which included what appeared to be monetary notations, $146.09 in coins and currency in a purse, a second, significantly smaller piece of cocaine, and a razor blade with white residue on it. The officers did not recover any paraphernalia typically associated with the use of rock cocaine (i.e., glass tubes). Macias told the officers she swallowed the rock cocaine as a medicine. Before Macias was taken to the police station, the arresting officers "observed what appeared to be the outline of a cell phone in the rear of her pants." In compliance with police policy, the two male officers did not remove the object from Macias's pants. Instead they told the officer who transported Macias to the station to have a female officer search Macias and remove the item. The officer who transported Macias had cleaned out the back seat of the patrol car before Macias entered. Shortly after Macias exited the vehicle, the officer found a cell phone in the back seat, which he turned over to one of the arresting officers at the station. At about 4:45 p.m., the cell phone rang and one of the arresting officers asked a Spanish-speaking officer to answer it. The caller asked for a "20" of "rock" and said she would meet the officer to pick it up. The officers did not answer the cell phone again even though it rang several more times. An information charged Macias with possession of cocaine for sale and also alleged a prior conviction for the same offense. At trial, the prosecution presented to the jury evidence pertaining to the dayplanner the police recovered from Macias's hotel room and the conversation the officer had on Macias's cell phone. Macias did not object to this evidence. She testified in her own defense, stating she combined the rock cocaine with oils and applied it topically to her body or bathed in it to relieve soreness, and also used the rock cocaine orally for tooth pain. Macias claimed she did not sell cocaine, and earned money by cleaning residences and doing laundry. She also claimed the notations in her dayplanner were a record of money owed to the hotel. While Macias was on the

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On appeal, Macias describes this recovered item as a "date book." 3

stand, the trial court took judicial notice of the fact she was on probation for possession of a controlled substance at the time of her arrest for the charged offense. A jury found Macias guilty of possessing cocaine for sale, and also found she had been convicted of the same charge in April 2002. The trial court sentenced Macias to the upper term of five years for the offense, finding two aggravating factors: Macias was on felony probation at the time of the present offense and her prior performance on probation was unsatisfactory. Macias did not dispute the truth of either aggravating factor, and the trial court did not find any factors in mitigation. The court also sentenced Macias to a consecutive three-year term based on her prior conviction. Thus, she received a total sentence of eight years.
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DISCUSSION

I.

THE POLICE OFFICERS DID NOT VIOLATE MACIAS'S CONSTITUTIONAL RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES.

Macias claims the officers acted outside the scope of the arrest warrant when they recovered the dayplanner from her hotel room and answered the cell phone found in the back of the police car, thereby violating her Fourth Amendment right to be free from unreasonable searches and seizures. The People argue Macias waived this claim on appeal by failing to move to suppress the evidence below under Penal Code section 1538.5. We agree. Penal Code section 1538.5, subdivision (a)(1) provides: "A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: [

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