People v. Alonso
| Decision Date | 23 February 2021 |
| Docket Number | B300797 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. OMAR RODRIGUEZ ALONSO, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No.BA471389)
APPEAL from a judgment of the Superior Court of Los Angeles County, Enrique Monguia, Judge. Affirmed as modified.
Daniel Milchiker, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
Police officers recovered numerous bindles of cocaine base and several hundred dollars in cash during a search of appellant Omar Rodriguez Alonso, who was on postrelease community supervision (PRCS) at the time. Appellant moved to suppress the items as the fruits of a warrantless search. The magistrate denied the motion, and the trial court later denied appellant's renewed motion to suppress. At trial, the court instructed the jury that the reasons for the search had been settled and resolved, and were not to be considered for any purpose. The jury found appellant guilty of possessing cocaine base with intent to sell.
Appellant now contends the trial court erred in denying his motions to suppress. argues that the prosecution failed to provide the court with sufficient evidence of the search conditions to which he was subject and the arresting officer's awareness of them. Respondent Attorney General responds that appellant forfeited these arguments by failing to raise them in connection with his first motion to suppress. We agree. We further agree with respondent that the trial court properly would have denied the motions even if these arguments had been timely made.
Appellant also challenges the jury instruction regarding the search, which he argues impermissibly directed a guilty verdict and deprived him of the ability to present a defense. We reject these contentions. Appellant helped craft the instruction and did not object to it below. His arguments concerning the instruction accordingly are barred by the doctrine of invited error.
Appellant requests that we review the sealed record of the Pitchess1 hearing to determine whether police personnel records were improperly withheld from discovery. Respondent does notoppose this request, which we grant. We find no abuse of the trial court's discretion. We likewise find no error in the trial court's failure to hold an ability to pay hearing before imposing fines and fees. Appellant failed to raise the issue or object to the fines and fees at sentencing and therefore forfeited the claim.
We agree with appellant and respondent that the one-year prison prior enhancements must be stricken from appellant's sentence. Because the court imposed the maximum sentence, we need not and do not remand for resentencing. Instead, we strike the enhancements and affirm the judgment as modified. Respondent's motion to augment the record is granted.
An amended information charged appellant with one count of possessing cocaine base for sale (Health & Saf. Code, § 11351.5). The amended information further alleged that appellant suffered a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(j), 1170.12)2 and served two previous prison terms (§ 667.5, subd. (b)).
A jury found appellant guilty as charged. Appellant subsequently admitted the priors. The trial court denied appellant's Romero3 motion to strike his strike prior. It sentenced appellant to the maximum sentence possible, a total of 10 years: the high term of four years, doubled to eight years due to the strike, plus two one-year terms for the prison priors. The court also imposed a $400 restitution fine (§ 1202.4, subd. (b)), a $30 criminal conviction assessment (Gov. Code, § 70373), a $40court operations assessment (§ 1465.8, subd. (a)(1)), and a criminal laboratory analysis fee and associated penalty assessments totaling $205. (Health & Saf. Code, § 11372.5, subd. (a); § 1464, subd. (a)(1).) Appellant timely appealed.
Los Angeles Police Department (LAPD) Officer Adolfo Pacheco testified that he worked in the department's narcotics unit. His job duties included looking for narcotics offenders, often on Skid Row, and monitoring individuals with previous narcotics convictions and those on probation.
On September 11, 2018, Pacheco was remotely monitoring a portion of Skid Row using a high-definition surveillance camera. He observed heavy pedestrian traffic coming and going from a particular tent. His training and experience led him to suspect that drugs were being bought and sold in the tent. Pacheco dispatched other officers to go to the scene while he remained at the surveillance post.
As Pacheco watched his fellow officers at the scene, he saw a person enter a tent with money and exit it with a clenched hand. She was detained and found to have off-white solids resembling cocaine base in her possession. Pacheco saw appellant subsequently exit the same tent, which he had not seen appellant enter. No one exited the tent after appellant. Appellant left the area and was not detained or searched.
Two days later, on September 13, 2018, Pacheco was on undercover patrol with his partner, LAPD officer Michael Mann, when he saw appellant near a tent in the same vicinity of Skid Row. Mann parked the officers' unmarked car and he and Pacheco approached the area on foot. Pacheco saw appellantexiting a tent. As he stepped out of the tent, appellant placed his clenched right fist into the right front pocket of his shorts.
Pacheco detained appellant. Pacheco searched appellant's right front pocket and found 12 individually wrapped bindles containing off-white solids resembling cocaine base. Pacheco opined that each bindle would be worth $20 if it were cocaine. Pacheco recovered a similar bindle and a fifty dollar bill from appellant's left front pocket, and $300 in cash from appellant's right cargo pocket. In the black bag appellant was carrying, Pacheco found 21 individually wrapped off-white solids resembling cocaine base concealed inside a flashlight and $400 in cash. Other officers recovered approximately 144 uniform off-white rocks and a digital scale from the tent appellant was seen exiting. The rocks recovered from the tent were the same as those found in appellant's pockets and in the bag. An LAPD criminalist who tested some of the recovered rocks testified that they contained cocaine base.
No drug paraphernalia or empty baggies were found in appellant's possession, and he did not appear to be under the influence. Pacheco further testified that appellant did not display any signs of heavy cocaine use, such as burned lips or fingers or poor hygiene.
Based on his background, training, and experience, Pacheco opined that a hypothetical individual in the circumstances presented here possessed narcotics for the purpose of sales. Pacheco's opinion remained the same even when the hypothetical did not include bindles and a scale recovered from a tent.
Pacheco's partner, officer Mann, testified that he and Pacheco went to Skid Row in an unmarked vehicle on September 13, 2018. Mann detained a woman while Pacheco detainedappellant nearby. Mann and LAPD detective Jorge Trejo testified that they subsequently searched the tent that appellant exited. They recovered a black digital scale and also found four bindles of off-white solids concealed inside men's shoes. Mann testified that he did not find any drug paraphernalia or other indicia of drug use in the tent, which along with its clean condition suggested that the tent was being used to sell drugs. The tent did not contain any identification, but Mann believed that appellant "was in charge" of the tent.
Prior to the preliminary hearing, appellant filed a motion to suppress the items recovered during the September 13, 2018 search.4 In his written motion, appellant asserted only that the search was conducted without a warrant. The prosecution filed an opposition in which it argued, in relevant part, that the search was valid because appellant "was on formal probation with search conditions" at the time.5 The prosecution asserted thatPacheco discovered appellant's status by "[u]sing department resources" prior to the search.
The magistrate heard the motion to suppress at the preliminary hearing, at which Pacheco was the sole witness. Pacheco testified that he was a narcotics officer with the LAPD whose duties including monitoring individuals who are "narcotic registrants"6 or on probation for narcotics. Pacheco testified that he recognized appellant on the surveillance camera on September 11. He further stated that he "advised [his] partners of the - - Mr. Alon[s]o and his probation conditions" before they went to Skid Row." On September 13, Pacheco "advised my partners of my observations and advised him [sic] we were going to conduct a probation search." On that date, Pacheco "contacted" appellant on the street, detained him, and "conducted a probation search" during which he "recovered off-white solids from his pocket and his bag that he had around his shoulder." Pacheco also testified that he recovered "U.S. currency," and that his partners recovered solids and currency from a tent he saw appellant exit. On cross-examination, Pacheco stated he had not "personally" arrested appellant in the past, and that he "probably" recovered "the business card of Mr. Alon[s]o's probation officer from [appellant's] pocket"...
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