People v. Harvey CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD254557
- Trial judges
- Timothy R. Walsh; Steven Stone
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Gilbert Nares (author), Judith D. McConnell, McINTYRE
Analysis
The trial court denied Harvey's motion to suppress evidence of drugs found in his backpack, finding the search was consensual, and subsequently sentenced him to probation with 180 days of local custody following his guilty plea. The Court of Appeal affirmed the judgment, finding no arguable issues on appeal after an independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to suppress evidence“There is substantial evidence Harvey voluntarily consented to the search. When Cooper asked whether it was "okay" to search the backpack, Harvey replied, "Yes, go ahead."” | mixed | correct | agree with court The court correctly applied the two-part standard for reviewing suppression motions: deferring to the trial court's factual findings supported by substantial evidence while exercising independent judgment on the constitutional question of whether the search was reasonable. The finding of voluntary consent is supported by the record where the defendant explicitly stated "Yes, go ahead" in response to the officer's request to search the backpack, satisfying the totality of the circumstances test for consent. |
Sentencing decision“The court did not abuse its discretion in sentencing Harvey. The conditions of probation are consistent with the plea agreement and 180 days local custody is substantially less than the lower term of 16 months that could have been imposed for violating section 11378.” | abuse of discretion | correct | agree with court The court correctly applied the abuse of discretion standard to the sentencing phase. The sentence imposed (probation with 180 days local custody) was within the statutory limits and consistent with the plea agreement, which capped the potential local imprisonment at two years. There is no indication the sentence was arbitrary or contrary to law. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying arguable issues and the court to independently review the record for error when counsel finds none.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal where no arguable issues exist, requiring a brief and court review.
- relied: People v. Weaver (2001) 26 Cal.4th 876 — Establishes the standard of review for suppression motions: deference to factual findings supported by substantial evidence and independent judgment on the reasonableness of the search.
- relied: People v. Ayala (2000) 23 Cal.4th 225 — Confirms that challenges to admissibility of evidence from police searches are reviewed under federal constitutional standards.
- relied: People v. Woods (1999) 21 Cal.4th 668 — Identifies consent as a specifically established exception to the Fourth Amendment's warrant requirement.
- relied: People v. Jenkins (2000) 22 Cal.4th 900 — States that whether consent was voluntary is a question of fact determined from the totality of circumstances.
- relied: People v. Chambers (1969) 276 Cal.App.2d 89 — Holds that a defendant's statement "Okay. Come on in" in response to a request to enter constitutes voluntary consent.
- relied: People v. Sandoval (2007) 41 Cal.4th 825 — Establishes that sentencing decisions are reviewed for abuse of discretion.
The appellate opinion: sound — The opinion is procedurally sound as a Wende/Anders review. It correctly identifies the standards of review for both the suppression motion and the sentencing, applies them to the specific facts (explicit verbal consent and plea agreement compliance), and cites appropriate authorities. The court fulfilled its independent review obligation by affirming based on the lack of arguable error in the record.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Harvey's motion to suppress methamphetamine and hydrocodone found in his backpack, finding the pat-down supported by reasonable suspicion and the backpack search consensual; Harvey then pleaded guilty to possession of methamphetamine for sale and received three years' formal probation with 180 days in county jail. On a Wende/Anders appeal with no supplemental brief from Harvey, the Court of Appeal independently reviewed the record, found no arguable issues as to the suppression ruling or the sentence, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to suppress: pat-down search of Harvey for weapons was supported by reasonable suspicion that he might be armed“the officer did articulate the facts establishing a reasonable or rational suspicion that the person might be armed, which would justify the pat down.” | mixed | correct | unsure The appellate opinion recites the trial court's finding (high-crime river bed area, prior contacts with knife-carrying individuals in that location, Harvey nervous, fidgeting and scanning past the officer) but does not independently analyze the pat-down or the lawfulness of the initial contact; it addresses only the consent search. The facts described are arguably sufficient under Terry-type analysis, and the contraband came from the consent search rather than the pat-down, but the opinion's silence on independent review of this issue leaves me unable to fully endorse the reasoning. |
Denial of motion to suppress: search of Harvey's backpack (including grooming bag and unlocked lock box) was a voluntary consensual search“There is substantial evidence Harvey voluntarily consented to the search. When Cooper asked whether it was "okay" to search the backpack, Harvey replied, "Yes, go ahead."” | mixed | correct | agree with court The court correctly stated the framework: factual findings reviewed for substantial evidence (Weaver), reasonableness judged independently under federal standards (Ayala), consent as an established warrant exception (Woods), and voluntariness as a fact question under the totality of circumstances (Jenkins). The trial court credited Cooper's testimony that Harvey said 'Yes, go ahead,' which supports voluntariness, and Chambers is apt on affirmative verbal consent. The opinion does not discuss whether consent to search the backpack extended to the closed grooming bag and lock box, but because the officer's question concerned whether anything illegal was in the backpack, the scope reasonably covered containers that could hold contraband, so the result is sound. |
Sentencing: grant of three years' formal probation with 180 days county jail following guilty plea to Health and Safety Code section 11378“The court did not abuse its discretion in sentencing Harvey. The conditions of probation are consistent with the plea agreement and 180 days local custody is substantially less than the lower term of 16 months that could have been imposed for violating section 11378.” | abuse of discretion | correct | agree with court The disposition was within the plea bargain (no more than two years local custody), and probation with 180 days is well below the 16-month low term available under section 11378 and Penal Code section 1170(h)(1). Nothing in the opinion suggests any unlawful or unreasonable probation condition. Sandoval correctly supplies the abuse-of-discretion standard. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal without merit must file a brief referring to anything in the record that might arguably support the appeal.
- relied: People v. Weaver (2001) 26 Cal.4th 876 — On review of a suppression ruling, the trial court's express or implied factual findings are deferred to if supported by substantial evidence, while the reasonableness of the search is judged independently.
- relied: People v. Ayala (2000) 23 Cal.4th 225 — Challenges to the admissibility of evidence obtained by police searches and seizures are reviewed under federal constitutional standards.
- relied: People v. Woods (1999) 21 Cal.4th 668 — Consent is one of the specifically established exceptions to the Fourth Amendment warrant requirement.
- relied: People v. Jenkins (2000) 22 Cal.4th 900 — Whether consent was voluntary or the product of coercion is a question of fact determined from the totality of the circumstances.
- relied: People v. Chambers (1969) 276 Cal.App.2d 89 — An affirmative verbal response to an officer's request for permission to enter ('Okay. Come on in') constitutes voluntary consent.
- relied: People v. Sandoval (2007) 41 Cal.4th 825 — A trial court's sentencing decision is reviewed for abuse of discretion.
The appellate opinion: sound with gaps — The opinion correctly states the standards for reviewing a suppression ruling and a sentencing choice, and the consent finding is supported by the credited testimony and the cited authority. It reaches a defensible result but, consistent with its limited Wende format, does not independently analyze the lawfulness of the initial contact and pat-down or whether Harvey's consent extended to the closed containers inside the backpack.
Opinion
Filed 5/5/16 P. v. Harvey CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068301
Plaintiff and Respondent, v. (Super. Ct. No. SCD254557)
JOEL LEVIN HARVEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Steven Stone and Timothy R. Walsh, Judges. Affirmed.
Appellate Defenders, Inc. and Laurel Simmons, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Joel L. Harvey was charged with violations of Health and Safety Code1 section 11351 (possession for sale of hydrocodone, count 1), and section 11378 (possession for 1 All statutory references are to the Health and Safety Code unless otherwise specified. sale of methamphetamine, count 2). After the court denied his motion to suppress evidence of the 38.28 grams of methamphetamine and 125 tablets of hydrocodone the police seized from his backpack, Harvey pleaded guilty to count 2 in exchange for dismissal of the balance and the district attorney's agreement Harvey would receive no more than two years of local imprisonment. After Harvey pleaded guilty, the court granted the People's motion to dismiss the balance, stayed imposition of sentence, and granted Harvey three years' formal probation on conditions, including that he serve 180 days in county jail.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) indicating she is unable to find any arguable issues for reversal on appeal. Counsel requests this court to review the record for error as required by Wende. We granted Harvey the opportunity to file a supplemental brief and he has not responded. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Search, Seizure, Arrest2 In March 2014 San Diego police were patrolling the river bed under the trolley bridge in the area of Friars Road in San Diego. The area is known for having narcotics activity and assaults. There are no legal residences in the river bed.
After hearing rustling in some bushes under the bridge, San Diego police officer Marisela Cooper made contact with Harvey. Harvey, wearing a large backpack, told 2 This factual background is based on testimony received at the hearing on Harvey's motion to suppress. 2 Cooper he was living in the river bed. Harvey was nervous and fidgeting, looking in all directions and scanning the area behind Cooper.
Conducting a pat-down search of Harvey for weapons, Cooper found a pocket knife in Harvey's pocket. Cooper asked Harvey if he had anything illegal in his backpack. Harvey said he did not. Cooper said, "I'm going to check, okay?" to which Harvey replied, "Yes, go ahead."
When Cooper opened Harvey's backpack, she saw a grooming bag. Cooper opened the grooming bag, which contained 124 pills later identified to be hydrocodone and acetaminophen. There was a lock box under the grooming bag. The box was closed but not locked. Cooper opened the lid, and found three baggies and a bindle containing a crystal substance she recognized as methamphetamine. Police arrested Harvey.
B. Motion to Suppress Harvey brought a motion to suppress "[a]ll controlled substances and paraphernalia seized" (italics omitted) in connection with his arrest. After conducting a hearing where Cooper testified, the court denied the motion. In denying Harvey's motion to suppress, the court expressly found Cooper's testimony "to be credible." The court found the pat-down search was lawful, stating:
"[T]he officer did articulate facts that established a reasonable or rational suspicion that the person might be armed. She, based on her own experience, was familiar with this area. She testified that it was unsafe, had been—there had been booby traps, known batteries, assaults, and more importantly, she had prior contact in that specific area with others who had weapons such as knives. Based on that plus the other facts she stated were that he was fidgety . . . looking past the officer . . . the officer did articulate the facts establishing a 3 reasonable or rational suspicion that the person might be armed, which would justify the pat down."
The court also determined Cooper's search of Harvey's backpack was consensual, stating:
"The court would find based on the evidence presented that, in fact, the backpack search was a consensual search in this case, so to the extent the defense says it was not a product of free will, the court disagrees with the defense on that. The court would find that it was a consensual search. He was asked specifically—the issue was raised that I'm going to search the backpack, okay, something along those lines. Yes, go ahead, and then the backpack was searched."
DISCUSSION
As required by Anders, supra, 386 U.S. 738, counsel has set forth two possible, but not arguable issues:
1. Did the court properly deny Harvey's motion to suppress evidence?
2. Did the court abuse its discretion during sentencing?
We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and have not discovered any reasonably arguable issues for reversal on appeal.
A. Motion to Suppress In reviewing the trial court's ruling on a motion to suppress evidence, "[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence." (People v. Weaver (2001) 26 Cal.4th 876, 924.) Substantively, we review challenges to the admissibility of evidence obtained by police searches and seizures under federal constitutional standards. (People v. Ayala (2000) 23 Cal.4th 225, 254-255.) "In 4 determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (Weaver, at p. 924.)
Consent is "'one of the specifically established exceptions'" to the Fourth Amendment's warrant requirement. (People v. Woods (1999) 21 Cal.4th 668, 674.)
"[W]hether consent was voluntary or was the product of coercion on the part of searching officers is a question of fact to be determined from the totality of circumstances."
(People v. Jenkins (2000) 22 Cal.4th 900, 973.)
There is substantial evidence Harvey voluntarily consented to the search. When Cooper asked whether it was "okay" to search the backpack, Harvey replied, "Yes, go ahead." (See People v. Chambers (1969) 276 Cal.App.2d 89, 107 [police officer requested permission to enter an apartment, woman's statement, "Okay. Come on in"
constituted voluntary consent].)
B. Sentencing We review the trial court's sentencing decision for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The court did not abuse its discretion in sentencing Harvey. The conditions of probation are consistent with the plea agreement and 180 days local custody is substantially less than the lower term of 16 months that could have been imposed for violating section 11378. (See § 11378; Pen. Code, § 1170, subd. (h)(1).)
Competent counsel has represented Harvey on this appeal.
5 DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
McINTYRE, J.
Cites, in this corpus
- People v. Sandoval S148917 · 2007-07-19
- People v. Weaver S004665 · 2001-08-20
- People v. Jenkins S007522 · 2000-06-28
- People v. Ayala S009108 · 2000-06-08
- People v. Woods No. S068741 · 1999-08-26
- People v. Wende Crim. 20851 · 1979-10-12
- People v. Chambers Crim. 15053 · 1969-09-15