People v. Carvajal

• Decision Date: 09 March 1988
• Docket Number: No. B,B
• Citation: 202 Cal.App.3d 487,249 Cal.Rptr. 368
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Oscar CARVAJAL, Wilson Montoya, Jose Martinez, Smila Franks and Ligia DeVinciquerra, Defendants and Appellants. 024855.

Page 368

249 Cal.Rptr. 368

202 Cal.App.3d 487

PEOPLE of the State of California, Plaintiff and Respondent, v. Oscar CARVAJAL, Wilson Montoya, Jose Martinez, Smila Franks and Ligia DeVinciquerra, Defendants and Appellants.

No. B 024855.

Court of Appeal, Second District, Division 2, California.

March 9, 1988.

Certified for Partial Publication ^*

Review Denied June 23, 1988. ^**

Hanson & Egers, Earl L. Hanson, Roger J. Rosen, David M. Dudley, Los Angeles, Nasatir & Hirsch, Michael D. Nasatir, Santa Monica, Michaelson & Levine, Alvin S. Michaelson and Janet I. Levine, Los Angeles, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Susanne C. Wylie and Tricia Ann Bigelow, Deputy Attys. Gen., Los Angeles, for plaintiff and respondent.

FUKUTO, Associate Justice.

Introduction

Appellants, Oscar Carvajal, Wilson Montoya, Jose Martinez, Smila Franks, and Ligia DeVinciquerra, appeal from the judgments entered upon their negotiated pleas of guilty and nolo contendere to various narcotic drug charges and enhancements following denial of their motions to quash and suppress. (Pen.Code, § 1538.5, subd. (m).) On appeal, all appellants challenge the trial court's orders denying their motions to quash search warrants and suppress evidence. Appellants Montoya and Martinez also contend that their sentence exceeded the double-the-base term limitation of Penal Code section 1170.1, subdivision (g). We affirm the judgments.

I. Detention and Search of the Mitsubishi Truck

Appellants Montoya and Martinez each attack the legality of the detention and search of a Mitsubishi truck and its contents, including sealed boxes in the rear of the truck containing in excess of 400 pounds of cocaine. Viewed according to the customary standard of appellate review (People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961), the evidence at the Penal Code section 1538.5 hearing established that within 10 days prior to April 23, 1986, Los Angeles Police Detective Gary Bitterolf received information from a confidential, reliable informant identifying Montoya and Oscar Carvajal as major Columbian drug traffickers. On April 23, 1986, Detective Bitterolf and several other police officers began surveillance of premises at 1729 G Street in the City of Ontario. At approximately 7 a.m., they saw Montoya leave the residence, driving a blue Toyota pickup truck with a three tone blue shell camper. The officers followed.

Montoya stopped at a pay telephone. He dialed a telephone number, then hung up and briefly returned to his truck. The telephone rang and Montoya answered and appeared to carry on a brief conversation. Based on Montoya's conduct, Detective Bitterolf formed the opinion that a beeper or pager device had been utilized.

Montoya returned to his truck and drove to a residence at 19211 Chestridge Drive in the City of Walnut. Montoya entered the house for approximately three minutes, then drove back to 1729 G Street and used a key to enter condominium number 85. He was carrying a small envelope or package.

Later, Montoya left the residence accompanied by Juan Carvajal (hereinafter Juan C.). Montoya entered the Toyota truck and Juan C. entered a dark brown Celebrity station wagon. The two cars travelled in tandem to a camper shell vendor in the San Fernando Valley. Montoya left the truck there and entered the station wagon driven by Juan C. The station wagon made stops at two pay telephones where Montoya again appeared to converse with persons contacted by pager or beeper. Montoya and Juan C. then picked up the Toyota truck, which had a new, smaller white camper shell.

Montoya and Juan C. each drove their vehicles to the corner of Fifth Street and Wilshire Boulevard in the City of Santa Monica. Montoya parked in a restaurant parking lot and used a pay telephone in a manner consistent with the use of a beeper or pager. Thereafter, he waved to Juan C., who retrieved a package about the size of a "kilo" or "brick" from inside the station wagon. Detective Bitterolf formed the opinion that the package contained cocaine or money. The two men entered the Toyota truck and drove to the corner of Ocean and Wilshire Boulevards. There they were joined by appellants Oscar Carvajal (hereinafter Oscar C.) and Jose Martinez. The four men disappeared into the Cafe Casino restaurant for approximately 40 minutes.

Juan C. and Montoya emerged from the restaurant and returned to the Toyota truck. Martinez and Oscar C. drove away in a gray Honda, which entered the subterranean garage of the condominium complex at 1133 Fifth Street, and parked next to a Mitsubishi truck equipped with a camper shell identical to the one on Montoya's Toyota pickup truck. Juan C. and Montoya drove to the corner of Fifth Street and Wilshire Boulevard, parked, then entered the front security lobby door of the condominium complex. Juan C. was carrying an attache case.

Approximately one hour later, Juan C. and Oscar C. left the subterranean garage in the gray Honda. Contemporaneously, Montoya returned to his Toyota truck and Martinez drove the Mitsubishi truck from the subterranean garage. The two trucks travelled in tandem to 2702 Calle Ruiz Street in West Covina. Both entered a double garage. Martinez and Montoya subsequently left in the Mitsubishi truck and drove to a storage complex at 1200 Benson Street in the City of Upland. The trucks were driven in an unusual manner, in and out of several shopping center parking lots and appeared to be trying to detect or avoid surveillance. At the storage facility, Martinez and Montoya loaded several large boxes into the Mitsubishi truck. The boxes appeared extremely heavy because it took both men to lift each box into the truck. Detective Bitterolf was personally aware of three cases in which public storage facilities had been used for the storage of cocaine. The two men left the storage facility in the Mitsubishi truck.

Detective Bitterolf drove alongside the Mitsubishi truck and through the back door and side window of the camper shell, observed four large cardboard boxes wrapped with tape. Based upon his observations throughout the day, including the subjects' use of beepers and two identical trucks, their unusual, evasive driving pattern, and the information received from the informant, Detective Bitterolf formed the opinion that the Mitsubishi truck contained a large quantity of cocaine. He believed that the truck was about to disappear into another garage where police officers could not see what was occurring, and decided to have the truck stopped and searched, whether or not the occupants consented.

Los Angeles County Deputy Sheriff Jerry Hankerson was on routine patrol in the City of Industry when he was approached by a Los Angeles police officer who requested that he stop the Mitsubishi truck. When the deputy activated his red lights, the truck pulled over and Montoya emerged from the driver's door and walked toward the patrol car. Deputy Hankerson patted down Montoya for weapons and asked him for a driver's license and vehicle registration. Montoya handed the deputy a new car brochure and gestured toward the truck. Deputy Hankerson concluded that Montoya did not speak English, and radioed for assistance.

Within two minutes, California Highway Patrol Officer James Padilla and Los Angeles Police Department Detective Donald Brown arrived at the scene. At Detective Brown's request, Officer Padilla asked Montoya, in Spanish, if there were any drugs in the pickup truck. Montoya replied that "he didn't know there was anything in there." Officer Padilla asked Montoya who owned the truck and Montoya stated that he had "borrowed the vehicle from a friend." Padilla then explained, in Spanish, that Detective Brown was a "drug officer" and "would like to look in the back of his pickup truck where the boxes were at." Montoya said, "Go ahead and look."

Detective Brown went to the rear of the camper shell and found it locked. He turned toward Officer Padilla and Montoya and asked for the keys. Padilla said, "llavez," which is the Spanish word for keys. Montoya handed the keys to Detective Brown. ¹

The search of the boxes in the Mitsubishi truck yielded more than 400 pounds of cocaine.

It was later determined that the Mitsubishi truck was owned by appellant Martinez.

Montoya joins Martinez in challenging the detention and search of the Mitsubishi truck. Respondent contends that Montoya lacks standing to do so, the parties having stipulated that Martinez was the owner of the truck at the time in question.

The superior court found that Montoya had "standing to contest the search of the truck both as to the consent issue and as to the probable cause issue." "On appeal, we review the matter of standing as a question of law, against the backdrop of facts as found by the trial court." (People v. Leonard (1987) 197 Cal.App.3d 235, 239, 242 Cal.Rptr. 757.)

Under Rakas v. Illinois (1978) 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, the appropriate inquiry is whether the police intruded upon Montoya's reasonable expectation of privacy. (Id. at pp. 148-149, 99 S.Ct. at p. 433.) The uncontroverted evidence establishes that Montoya was driving the vehicle with the owner's permission, and apparently possessed keys to the ignition and camper shell when detained by police. We find these facts sufficient to confer standing. ( People v. Leonard, supra, 197 Cal.App.3d at p. 239, 242 Cal.Rptr. 757; see also People v. Nelson (1985) 166 Cal.App.3d 1209, 1214, 212 Cal.Rptr. 799; United States v. Portillo (9th Cir.1980) 633 F.2d 1313, 1317.)

Appellants contend that the warrantless search of the camper shell was not supported by any exception to the warrant requirement. Respondent, on the other hand, asserts two legal theories to support the search: (1) that the search was made pursuant to consent obtained during a valid investigatory detention; and (2) that the search was a valid, warrantless...