People v. Ethridge
| Decision Date | 28 July 2003 |
| Docket Number | F040782 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JERRY DEAN ETHRIDGE, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. 638239-4. Robert Oliver, Judge.
The judgment is affirmed.
Matthew D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Harris, Acting P.J., Wiseman, J. and Cornell, J.
On October 21, 1999, an amended information was filed in the Superior Court of Fresno County charging appellant Jerry Dean Ethridge with count I, transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a)(1)); count II, possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)); and count III, possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). It was alleged as to count I, that appellant was personally armed with a firearm (Pen. Code, § 12022, subd. (c)); as to count II, that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)); and as to all counts that appellant suffered one prior serious and/or violent felony conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i), § 1170.12), and served four prior prison terms (Pen. Code, § 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegations.
On November 1, 1999, appellant moved to suppress evidence. On November 19, 1999, the prosecution filed opposition but the matter was taken off calendar.
On May 15, 2000, appellant pleaded guilty to count I, transportation of cocaine base, and count III, possession of a firearm by a felon. He admitted the firearm enhancement as to count I, the prior strike allegation, and the four prior prison term enhancements. The court granted the prosecution's motion to dismiss count II and the remaining allegations, and indicated it was not going to impose sentence for the strike and the enhancements. The court referred the matter to the probation department and noted appellant had been accepted into a drug-treatment program.
On October 20, 2000, appellant failed to appear for the sentencing hearing and the court issued a bench warrant for his arrest, but agreed to hold the warrant for two weeks. On November 3, 2000, appellant again failed to appear and the court ordered execution of the bench warrant. On February 12, 2001, appellant was arrested under the bench warrant.
On June 27, 2001, the court granted appellant's motion to withdraw his previous pleas. On June 28, 2001, appellant was arraigned and pleaded not guilty and denied the allegations in the amended information.
On February 7, 2002, appellant again moved to suppress evidence pursuant to Penal Code section 1538.5. On February 11, 2002, the prosecution filed opposition. On March 6, 2002, the court conducted a hearing and denied appellant's suppression motion.
On April 23, 2002, appellant pleaded no contest to the three felony counts alleged in the amended information and admitted both firearm enhancements, the prior strike conviction, and the four prior prison term enhancements.
On May 31, 2002, the court denied appellant's motion to dismiss the prior strike conviction. The court denied probation and imposed an aggregate term of nine years: as to count I, transportation of cocaine base, the midterm of four years which was doubled to eight years as the appropriate second strike term, with a consecutive one-year term for one prior prison term enhancement. As to count III, possession of a firearm by a felon, the court imposed a concurrent midterm of four years. The court also imposed the midterm for count II, but stayed that term and both firearm enhancements pursuant to Penal Code section 654.
On June 12, 2002, appellant filed a timely notice of appeal.
At 4:45 a.m. on April 26, 1999, California Highway Patrol Officers Steven Swanson and Jeffrey Andriese were on patrol near Motel Drive and West Avenue in Fresno when they noticed a yellow Toyota Celica with a crack through the windshield.1 They also noticed the passenger in the front seat was not wearing a seat belt. They initiated a traffic stop because of these violations, and the vehicle was pulled over.
Officer Swanson contacted the driver, James Crone, and asked for his license and registration. Officer Andriese contacted the front seat passenger, appellant Jerry Ethridge. There was one passenger in the back seat. As Officer Swanson spoke with Crone, Swanson and Andriese saw appellant drop a piece of paper outside the front passenger window. Officer Swanson testified that Andriese asked appellant "to exit the vehicle and pick the piece of paper up" that he had dropped. Officer Andriese testified he asked appellant to exit the vehicle and pick up the piece of paper.
Officer Swanson testified appellant "exited the vehicle and began to pick up the piece of paper." Appellant stepped out of the passenger door and a piece of glass fell from his body to the ground. Officer Andriese testified the object was a cylindrical piece of glass, slightly less than four inches long, with burnt tips on either side and copper Brillo inside of it. There was brown and white residue running through the glass cylinder. Officer Swanson heard the noise as the glass hit the ground and walked to the passenger side. Officer Andriese retrieved the item and gave it to Swanson, who determined it was a crack pipe.
Officer Andriese detained appellant and Officer Swanson asked Crone and the other passenger to exit the car. Swanson looked into the right front passenger seat and found a handgun which was wrapped in a transparent white plastic bag. It was later determined the handgun was an unloaded Norinco 7.62x25 semi-automatic pistol, which had been reported stolen. A piece of rock cocaine was found on the front passenger-side floorboard. Appellant was arrested and searched, and the officers found two more "rocks" of cocaine and another glass pipe in his pockets. There was no residue on the second pipe. The three rocks weighed approximately 0.3 grams.
Appellant moved to suppress the gun and narcotics, and argued he was illegally detained when Officer Andriese told him to get out of the car and pick up the paper. The trial court denied appellant's suppression motion, and he subsequently pleaded no contest to possession and transportation of cocaine base and possession of a firearm by a felon, and admitted two firearm enhancements, the prior strike conviction, and the four prior prison term enhancements. He was sentenced to the second strike term of nine years in prison. On appeal, he contends his suppression motion should have been granted and the court should have granted his motion to dismiss his prior strike conviction.
Appellant contends the trial court should have granted his motion to suppress evidence because he was illegally detained when Officer Andriese told him to get out of the car and pick up the piece of paper. In the alternative he argues the officers lacked probable cause to arrest him after the glass pipe fell from his body because the officers gave conflicting testimony as to whether there was residue on that pipe.
Appellant filed a motion to suppress the glass pipes, rock cocaine, and the gun seized by Officers Swanson and Andriese during the traffic stop. Appellant conceded the officers properly conducted the traffic stop for the cracked windshield and seatbelt infractions. Appellant further acknowledged that Officer Andriese "ordered" him to pick up the piece of paper which he threw from the car, but argued the officers engaged in "some extraordinary exploration" when they decided the glass tube, which fell from his body when he got out of the car, was a crack pipe. Appellant argued there was no evidence that the glass tube "was anything out of the ordinary" and it "could just as easily [been] used in the ordinary course of household cleaning." Appellant asserted the officers' discovery of the glass tube was insufficient evidence to detain him and search the interior of the front passenger seat, where they found the gun. Appellant's motion was thus limited to whether the officers' observations of the glass tube provided sufficient evidence to detain him and search the car. Appellant did not challenge the validity of Officer Andriese's request to get out of the car and pick up the piece of paper.
The prosecution's opposition asserted the officers lawfully conducted the traffic stop because of the cracked windshield and the seatbelt infractions. The prosecution relied on Maryland v. Wilson (1997) 519 U.S. 408, 137 L. Ed. 2d 41, 117 S. Ct. 882, and further asserted that an officer can ask a passenger to step out of a vehicle during a traffic stop, and such a request does not constitute a detention. In addition, the officers had reasonable suspicion to detain appellant because he had littered in violation of Vehicle Code section 23112. When the glass pipe fell off appellant's body, the officers had probable cause to believe the vehicle contained contraband or evidence of a crime, and they properly searched the vehicle.
At the hearing on the suppression motion, Officers Swanson and Andriese testified about the traffic stop, as set forth ante. On cross-examination, defense counsel challenged their...
To continue reading
Request your trial