Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 206549
Haerle, Acting P.J.
I. INTRODUCTION
Defendant and appellant Renato Portillo, who pleaded no contest to one count of possession of cocaine salt for sale in violation of Health and Safety Code section 11351 appeals from a final judgment of conviction following his plea of no contest and from the denial of his pre-plea motion to suppress. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), Portillo’s court-appointed counsel has briefed no issues and asks this court to review the record below and determine if there are any arguable issues deserving of further briefing. We have done so, find none, and hence affirm the judgment entered below and the sentence imposed on appellant.
All further statutory references are to the Health and Safety Code, unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
Because this case was resolved by a plea agreement, our recitation of the facts is taken from Portillo’s brief which, in turn, is based on the testimony and evidence submitted at that hearing.
An amended information filed against Portillo in San Francisco County Superior Court alleged that he had committed four felonies: transportation of cocaine salt (§11352, subd. (a)); possession of cocaine salt for sale (§11351); possession of cocaine salt (§11350, subdivision (a)); and possession of hydrocodone (§11350, subd. (a)). The information also alleged that, as to the first two counts of the information, Portillo sold or possessed for sale more than 28.5 grams of cocaine pursuant to section 1203.073, subdivision (b)(1).
At the preliminary hearing, held before the amended information was filed, defendant filed a motion to suppress evidence. The prosecution opposed the motion, which was litigated and denied at the preliminary hearing.
Before defendant pled guilty to one count of possession of cocaine for sale in violation of section 11351 and after the People amended the information against him, defendant moved again to suppress the evidence against him. The People opposed this motion, defendant responded to the motion, and after a hearing was held, the court denied the motion.
At the hearing, the following facts were adduced: On August 26, 2008, San Francisco plain clothes police officers Campos and Hopkins noticed defendant and his girlfriend double-parked in front of the Cordova Market, on Rolph Street in San Francisco. Defendant went into the market. Because double-parking is a vehicle code violation, the officers approached defendant’s car when he came out of the market.
Defendant’s girlfriend rolled down the window when Campos knocked on it. Campos could smell burning marijuana coming from inside the vehicle. Based on his training and experience, Campos could tell it was the odor of burning marijuana rather than that of unburnt marijuana.
After Campos told Hopkins what he had observed, Hopkins detained defendant and pat-searched him for marijuana. Based on the smell coming from the vehicle, Hopkins believed that defendant might have marijuana on his person. In fact, defendant told the officers that he had smoked a couple of “roaches.” Hopkins did not feel a weapon during the pat-search but, in defendant’s right front pocket, he felt two plastic baggies full of a soft powder. Based on his training and experience, Hopkins believed the baggies contained a narcotic substance other than marijuana.
Campos asked for a marked unit to come and transport defendant to the station. Campos then detained defendant’s girlfriend, Ms. Crawford. She exited the car at his request and sat on the curb. When she did so, Campos saw two “little brown blunts” or “roaches” in an open ashtray in the front part of the vehicle. These could have been seen from outside the vehicle, although Campos did not notice them until Crawford got out of the car.
When Campos walked defendant to the patrol car to be transported to the station, defendant asked if he could give money and a key to Crawford. Campos agreed. Campos suspected that this key “opened up something that may have contained narcotics.”
Crawford was detained. Campos gave her the cash and asked her what the key was for. Crawford told Campos it was the key to “our lockbox,” a statement that was ultimately admitted not for the truth of the matter, but to show the effect the statement had on Campos. Campos asked Crawford for permission to search her residence. Crawford consented. This statement of consent was admitted at both the preliminary hearing and the suppression hearing, not for the truth of the matter, but to show its effect on Campos.
Crawford gave the officers her address on Cordova Street and they confirmed it by looking at her driver’s license and a computer generated CAD printout. Defendant’s identification revealed that he lived at a different address.
The officers could not recall whether Crawford used a key to get into the Cordova Street house. Once inside, Crawford signed a written form giving the officers permission to search the house. Campos explained the terms of the document to Crawford and made sure she filled it out accurately. He did not put down the time she signed the form, but he was certain it was before the search occurred. Crawford did not fill out the portion of the form that identified any parts of the house she didn’t have access to. Campos asked her verbally about this, and Crawford told him that she and the other two people who lived in the house, namely, defendant and his mother, had access to the entire house.
Crawford walked the officers into a bedroom. In the bedroom the officers saw men’s and women’s clothes, a bag of books, and a stereo. There was also a black lockbox on the floor. Hopkins opened the lockbox with the key Campos had taken from defendant.
Inside the lock box were items that Hopkins suspected were narcotics, namely, several baggies of suspected cocaine, and a baggie containing three white pills. In a box on a couch in this bedroom, Hopkins found 72 more baggies and spoons, a digital scale and a California Identification Card and insurance card with defendant’s name on them. He also found four notebooks with dollar amounts, names and phone numbers. The officers believed these were “pay/owe” sheets.
A chemist employed by the San Francisco Police Department tested the substances seized from defendant and from the lockbox. She concluded that the first four baggies contained various quantities of cocaine salt, and that the fifth baggie contained three tablets of hydrocodone. San Francisco Police Office Lou Barberini testified that he believed the cocaine seized from defendant and the lockbox were possessed for the purpose of sale.
After defendant’s guilty plea was entered, on February 27, 2009, he was sentenced in accordance with the plea bargain. On that same day, he filed a notice of appeal, indicating that his appeal was based on the denial of his motion to suppress evidence. Defendant did not apply for a statement of probable cause. This appeal, which is confined to his motion to suppress evidence, is authorized by Penal Code sections 1237.5 and 1538.5, subdivision (m) and by California Rules of Court, rule 8.304(b).
III. DISCUSSION
Defendant argued that the initial pat search was illegal. Such searches are routinely upheld where, as here, there is evidence the search was conducted for the purpose of determining whether the suspect is armed. (People v. Wilson (1997) 59 Cal.App.4th 1053, 1063.) Defendant also argued that Crawford’s consent was insufficient to justify the search of his belongings. However, valid consent may be obtained from a third party who possesses common authority over the property. (In re Scott K. (1979) 24 Cal.3d 395, 404.)
Accordingly, defendant could not prevail on appeal were he to challenge the trial court’s ruling on his motion to suppress, and further briefing on the legality of the officer’s search is not required.
There are no other legal issues that require further briefing.
Defendant was represented by counsel throughout the proceedings.
There were no errors in the disposition.
IV. DISPOSITION
The judgment and sentence are both affirmed.
We concur: Lambden, J., Richman, J.