People v. Lovan, G039458 (Cal. App. 11/26/2008), G039458.

CourtCalifornia Court of Appeals
Writing for the CourtFybel
PartiesTHE PEOPLE, Plaintiff and Respondent, v. MARTY JAY LOVAN, Defendant and Appellant.
Docket NumberG039458.
Decision Date26 November 2008

Page 1

THE PEOPLE, Plaintiff and Respondent,
v.
MARTY JAY LOVAN, Defendant and Appellant.
G039458.
Court of Appeals of California, Fourth Appellate District, Division Three
November 26, 2008
Not to be Published

Appeal from a judgment of the Superior Court of Orange County, No. 05NF4816, Gregg L. Prickett, Judge. Affirmed in part, reversed in part and remanded for resentencing.

Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FYBEL, J.


INTRODUCTION

Defendant Marty Jay Lovan appeals from the judgment entered after a jury found him guilty of possession of methamphetamine for sale, transportation of methamphetamine, and possession of controlled substance paraphernalia. Defendant argues the judgment should be reversed because the trial court erroneously denied his pretrial motion to suppress evidence he contends was obtained by police following an unjustified detention. He also contends his conviction for transportation of methamphetamine was not supported by substantial evidence.

We affirm the trial court's denial of defendant's motion to suppress because the record shows the police-initiated contact at issue was consensual and did not constitute a detention. We reverse, however, defendant's conviction for transportation of methamphetamine because substantial evidence did not support the finding defendant moved or transported methamphetamine from one location to another.

SUMMARY OF FACTS1

In the early afternoon of December 9, 2005, Officer Darren Lee of the Anaheim Police Department was on duty, patrolling the area around the Eagle Inn Motel, when he spotted a cream-colored vehicle backed into "the very last space in a row of parking stalls" of the motel's parking lot. Lee was driving a marked black-and-white police car, and was accompanied by Officer Dustin Ciscel and one other officer. Lee was wearing a black polo shirt (with an embroidered police badge on the front and the word "police" on the back), black pants, a full police duty belt, and black boots.2

Lee could see "the top of a person's head in the driver's seat" of the cream-colored car and he testified, "it looked as though the person was ducking down, trying to avoid me." Lee drove the police car through the parking lot toward the cream-colored car and parked at a perpendicular angle to the car, 10 to 15 feet away from it. The patrol car did not block the cream-colored car's path; Lee testified, "I intentionally parked my vehicle so I could allow the person access to leave if he wanted to."

Lee did not activate the police car's lights or siren. He got out of the police car and walked to the driver's door of the cream-colored car. He saw that the driver's door was closed and its window was rolled up, and heard the car's engine running. Ciscel walked to the rear of the car to conduct a license plate check through dispatch. Neither Lee nor Ciscel drew any weapon.

Lee identified defendant as the car's sole occupant who was seated in the driver's seat. Lee noticed the car's stereo was missing. He asked defendant, "can I talk to you out here real quick?" Defendant opened the car door and got out of the car. Lee asked defendant what he was doing. Defendant told Lee that he was sitting outside the motel because he was waiting for the housekeepers to finish cleaning his room. Lee asked defendant about the missing stereo and defendant told him the car never had a stereo.

Lee told defendant that the officers were looking for people engaged in narcotics activity and asked defendant about his narcotics use. Defendant told Lee that he had smoked some marijuana. Lee asked defendant, "do you have any drugs[?] Can I check your pockets real quick?" Defendant answered, "yeah, go ahead." Lee described defendant's demeanor as "nervous but very cooperative," while they were talking. Lee spoke to defendant in "[a] normal conversation[al] tone and volume."

Before searching defendant, Lee secured defendant's hands by instructing defendant to interlace his fingers behind his back; Lee held defendant's hands together with one hand and searched defendant with the other. No other officer touched defendant. Lee found $500 in cash and a cigarette box in defendant's shirt pocket. Lee opened the cigarette box and saw that it contained what he thought was methamphetamine. He handed the box to Ciscel for closer inspection. Ciscel asked defendant, in a conversational tone of voice, if he could check inside the cigarette box; defendant nodded. Ciscel confirmed the box contained methamphetamine. Lee also found $34 in defendant's right front pants pocket. At no time did defendant ask the officers to stop their search.

Lee arrested and handcuffed defendant and had him sit down either on the curb at the rear of the cream-colored car or on its bumper. Ciscel read defendant his rights under Miranda v. Arizona (1966) 384 U.S. 436; defendant said he understood his rights. Ciscel asked defendant whether he was aware of any other narcotics. Defendant told Ciscel there was a blue duffel bag inside his motel room. Defendant said that someone had dropped off the duffel bag the night before and it might contain narcotics. Ciscel asked if he could search the room. Defendant gave permission to search his room and directed the officers to a key inside the car.

Ciscel searched the motel room and found a blue duffel bag which contained narcotics pipes and a pair of jeans. In the coin pocket of the jeans, Ciscel found a baggie containing a substance that tested positive for methamphetamine. Also in the duffel bag was a large sandwich bag with a white crystal substance that resembled methamphetamine inside it; the substance did not test positive for the presence of methamphetamine.

Lee searched the car. He found a black leather jacket on the front passenger seat; the jacket did not contain any identification. In the pockets of the jacket, Lee found a digital scale, a glass methamphetamine pipe, a one-inch by two-inch baggie containing a small spoon, about 50 new stamp-sized baggies, and six "miscellaneous" baggies with small amounts of methamphetamine inside. Lee also found a wallet on the front passenger seat, containing $100 and a bank check card with defendant's name and picture on it.

Defendant testified he was sitting in his car before police officers contacted him. He said he was waiting for the housekeeper to clean the motel room he and his family lived in. While he was sitting there, and before the police officers arrived, a man named "Joe" arrived and sat in the car with defendant for about 10 minutes.

Defendant further testified he did not see the police officers approach because he was bending down to connect a radio wire. He testified an officer knocked on his window, asked him what he was doing, asked for identification, and told him to get out of his car. He said the officer searched him without asking for his consent. He also said he never told the officers he smoked marijuana. He did consent to the officers searching his car. He stated he had $600 in his wallet he had received from his wife's paycheck that he was going to use to pay for the motel room.

Defendant stated the black jacket was not his and the police officer did not remove a cigarette box from his shirt pocket. Defendant acknowledged his contact with the officers was "[j]ust normal conversation" and they did not yell at him. He said the officers were nice to him.

PROCEDURAL BACKGROUND

Defendant was charged in an information with (1) possession of methamphetamine for sale in violation of Health and Safety Code section 11378; (2) sale or transportation of methamphetamine in violation of section 11379, subdivision (a); and (3) possession of controlled substance paraphernalia in violation of section 11364. Defendant filed a motion to suppress evidence obtained by the police officers on the ground the officers, without a warrant, and without probable cause, reasonable suspicion, or consent, detained him and searched his person, his car, and his motel room in violation of his constitutional rights. Following an evidentiary hearing, the trial court denied defendant's motion on the ground the officers' contact with defendant was consensual.

At trial, Lee and Ciscel reiterated the testimony they gave at the hearing on defendant's motion to suppress about their contact with defendant. Ciscel further testified at trial that after he had read defendant his rights, defendant told Ciscel he was selling drugs to support his family. Although defendant did not tell Ciscel where any of the drugs found in the car came from, defendant generally stated that he would drive to meet a friend named Lou to pick up 10 bags of methamphetamine, drive back to the area around the motel, sell the bags, return $ 200 to Lou, and receive $50 back from Lou for the sales. Defendant also told Ciscel that the last time he saw Lou was the night before the incident with the police when Lou dropped off the blue duffel bag which the police found in defendant's motel room.

Defendant's wife testified at trial that on December 9, she had met defendant at lunchtime to give defendant money from her payroll check.

Defendant testified at trial that after he met his wife and got the money from her, he returned to the motel and sat in his parked car in the parking lot. He testified that about 15 minutes later the police officers contacted him. Shortly after he had returned to the motel, but before the police officers arrived, defendant stated that Joe got in the car and sat with defendant for one or two minutes. He testified Joe was wearing a black leather jacket. Joe told defendant he would give him money to pay for the motel room they shared and then...

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