P. v. Rodriguez CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN302556
- Trial judges
- K. Michael Kirkman; Robert J. Kearney
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Joan K. Irion
Analysis
The trial court denied Rodriguez's motions to suppress evidence under Penal Code section 1538.5 and to quash the information under section 995, finding the traffic stop justified and the subsequent consent to search voluntary. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende and finding no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to suppress evidence under Penal Code section 1538.5“The court found the stop was justified and that it was not prolonged before consent to search was obtained in that the stop lasted eight minutes prior to consent.” | unclear | not reached | unsure The appellate court did not apply a specific standard of review (such as independent review for constitutional questions or deferential review for factual findings) to the trial court's ruling. Instead, the court stated it reviewed the entire record pursuant to Wende and found no reasonably arguable issues, effectively declining to address the merits of the suppression claim because counsel identified it as 'possible, but not arguable.' |
Denial of motion to quash information under Penal Code section 995“Immediately thereafter the court denied the section 995 motion.” | unclear | not reached | unsure The opinion mentions the denial of the section 995 motion in the procedural history but does not analyze it in the Discussion section. The court's Wende review concluded there were no reasonably arguable issues, implying the denial was not challenged as error on appeal. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record to identify any reasonably arguable issues when counsel cannot find any arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying possible but not arguable issues and request the court to review the record.
The appellate opinion: sound with gaps — The opinion is procedurally sound in its adherence to Wende/Anders protocols, as it explicitly states the court reviewed the entire record and found no reasonably arguable issues. However, it is a 'sound with gaps' analysis because it fails to articulate the specific legal standards or reasoning that would support the trial court's findings on the suppression motion, relying solely on the absence of arguable issues identified by counsel.
How this analysis was made · dispute it
unusual disposition unusual dispositionThe trial court denied Rodriguez's Penal Code section 1538.5 motion to suppress evidence seized after a traffic stop on Interstate 5 and his section 995 motion to set aside the information, after which he pleaded no contest to two money-laundering counts under Health and Safety Code section 11370.9 and received three years formal probation. On appeal, appointed counsel filed a Wende/Anders brief identifying the suppression ruling as a possible but not arguable issue, and the Court of Appeal, after independently reviewing the record and finding no reasonably arguable issues, affirmed the judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Penal Code section 1538.5 motion to suppress evidence obtained from the traffic stop, pat-down, and consent search of the vehicle“The court found the stop was justified and that it was not prolonged before consent to search was obtained in that the stop lasted eight minutes prior to consent.” | unclear | correct | agree with court The opinion does not articulate the usual standard for suppression rulings (deference to the trial court's factual findings supported by substantial evidence, independent review of the legal conclusion), but conducted Wende independent review of the entire record and found no arguable issue. On the facts recited, the stop was supported by observed Vehicle Code violations (no front plate, tinted windows), which supplies an objectively valid basis regardless of the deputy's suspicion; the trial court credited the deputy's testimony, found the eight-minute detention before consent was not unduly prolonged, and found consent was given while not in custody. Nothing in the recited record suggests those findings lack support or that the legal conclusion was wrong, so the affirmance appears correct, though the summary nature of the opinion limits certainty. |
Denial of Penal Code section 995 motion to set aside the information“Immediately thereafter the court denied the section 995 motion.” | unclear | correct | unsure The opinion mentions the section 995 ruling only in passing and does not discuss its merits; it is swept into the court's Wende review of the entire record, which found no arguable issue. Because the opinion provides no facts about the preliminary hearing evidence or the basis of the motion, there is no way to independently evaluate the ruling from the opinion alone. |
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 before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and file a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound — The opinion follows the Wende/Anders procedure, sets out the procedural history and the facts relevant to the one possible issue counsel identified, notes the defendant was given an opportunity to file a supplemental brief and did not, and affirms after independent review. The recited facts support the trial court's suppression findings, and nothing in the opinion indicates a misreading of the law, although the court does not state the standard of review or cite Fourth Amendment authority for its conclusion.
Opinion
Filed 6/27/13 P. v. Rodriguez 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, D062852
Plaintiff and Respondent, v. (Super. Ct. No. SCN302556)
AUGUSTINE RODRIGUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert J.
Kearney and K. Michael Kirkman, Judges. Affirmed.
Cynthia A. Grimm, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Augustine Rodriguez entered into a plea agreement under which he pleaded no contest to knowingly possessing in excess of $25,000, which was derived from a violation of the Uniform Controlled Substances Act, with the intent to conceal or disguise the nature or source of the funds (Health & Saf. Code, § 11370.9, subd. (a); count 1) and transporting such funds for the same purpose (Health & Saf. Code, § 11370.9, subd. (c); count 2). In return for his plea Rodriguez received three years formal probation and credit for time served.
Prior to his no contest plea, Rodriguez brought a motion to exclude evidence under Penal Code1 section 1538.5 and a separate motion to quash the information pursuant to section 995. The trial court held an evidentiary hearing on the section 1538.5 motion and denied it. Immediately thereafter the court denied the section 995 motion.
Rodriguez filed a timely notice of appeal and received a certificate of probable cause. (§ 1237.5.)
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) raising possible, but not arguable issues. We offered Rodriguez the opportunity to file his own brief on appeal, but he has not replied.
STATEMENT OF FACTS
Rodriguez was stopped while driving southbound on Interstate 5 by officers from a highway drug interdiction team. A search of the car revealed in excess of $25,000 in cash secreted in several places in the car. Rodriguez admitted he was paid to transport the money to Mexico and that he received it from persons involved in illegal narcotics trade.
Since Rodriguez raises a possible issue on appeal regarding the denial of the motion to suppress evidence pursuant to section 1538.5, we will briefly summarize the facts presented at the motion to suppress evidence.
1 All further statutory references are to the Penal Code unless otherwise specified. 2 On February 22, 2012, Orange County sheriff deputies stopped Rodriguez at the Las Pulgas off ramp on southbound Interstate 5. The deputy who stopped the car was suspicious of possible criminal activity, but stopped the car for absence of a front license plate and improperly tinted windows. The deputy activated a camera which recorded the events following the stop.
When the deputy contacted Rodriguez he observed what appeared to be several cell phones, a radar detector and a crucifix, which were hanging from the rear view mirror. The deputy also noted the overwhelming odor of air freshener, all of which were consistent with instances he had encountered involving drug traffic.
Rodriguez explained to the officer that he was driving from near San Francisco to Tijuana, in order to get his car repaired because it was overheating. He said his wife was driving about 15 minutes ahead of him in a rental car, although his children were in the car he was driving.
Rodriguez was asked to step out of the car, which he did. He consented to a pat- down which revealed a sum of money. Rodriguez said it was $500. Rodriguez then gave consent to search the car, and told the deputy there was approximately $60,000 in the car.
He later said the money came from cocaine sales. The search produced bundles of money located in various places in the car.
The court found the stop was justified and that it was not prolonged before consent to search was obtained in that the stop lasted eight minutes prior to consent.
The court found the deputy credible and that Rodriguez was not in custody when he gave consent to search or when he made admissions regarding the source of the funds.
3 DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating she is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.
738, the brief indentifies a possible, but not arguable issue:
Whether the trial court erred in failing to grant the motion to suppress evidence on Fourth Amendment grounds under section 1538.5?
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 and have not found any reasonably arguable appellate issues. Competent counsel has represented Rodriguez on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12