People v. Hernandez CA2/6

Filed 4/7/15 P. v. Hernandez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B258935 (Super. Ct. No. KA101399-01) Plaintiff and Respondent, (Los Angeles County)

v.

JOSE MANUEL HERNANDEZ,

Defendant and Appellant.

After the trial court denied his motion to suppress evidence obtained in a warrantless search, Jose Manuel Hernandez pled guilty to carrying a concealed firearm in violation of Penal Code section 25400, subdivision (a)(2).)1 He contends the trial court erred when it denied his motion to suppress the evidence. We affirm. FACTS The Los Angeles District Attorney charged Hernandez with receiving stolen property and two counts of carrying a concealed firearm. (§§ 496, subd. (a), 25400, subd. (a)(2).) Hernandez moved to suppress evidence pursuant to section 1538.5. A superior court judge heard the motion to suppress before it conducted the preliminary hearing.

1 All statutory references are to the Penal Code.

Police Officer Joe Dolgovin testified that one evening he was patrolling a neighborhood in Pomona while it was still light outside. He was "providing extra patrol" because of an increase in violent gang activity. He was alone. Dolgovin saw two people sitting in a legally parked car. He decided to contact them to find out what they were doing. He knew from experience that people park in their cars and use drugs. There was nothing about the car that "suggested the occupants were engaged in criminal activity." Dolgovin parked directly behind the car and walked toward it. He testified that "[a]s [he] walked up the driver's side of the car, the driver rolled down the window." Dolgovin "[i]mmediately noticed a smell of marijuana coming from the vehicle." Hernandez was sitting in the front passenger seat. Dolgovin told the driver that he smelled marijuana. Hernandez said that he and the driver had just finished smoking marijuana. The driver said they were getting ready to leave. Dolgovin decided to investigate "to make sure [the driver] was sober enough to drive off." He called another officer to help him. When the second officer arrived, Dolgovin asked the driver to get out of the car. After he checked the driver for weapons, he asked the second officer to have Hernandez get out of the car. The purpose of having Hernandez get out of the car was for "officer safety" and "to make sure [Hernandez] was sober enough also to leave." The trial court denied the motion to suppress. It found, "[T]his is a classic case of [a] consensual encounter. The officer candidly said, I want to see what they were doing, and he has a right to do that. [Hernandez] had a right not to speak to him, but in this case the [driver] rolled down the window, [and Hernandez] admitted he smoke[d] marijuana. At that point it turned into a detention. The officer had reasonable suspicion to believe that a crime occurred, smoking marijuana, and did the prudent thing by investigating." The trial court noted there was no evidence of "any type of action taken by the police to tell the occupants that they were not free to leave," and the officer "simply pulled up behind" the car.