(Los Angeles County Super. Ct. No. BA363459) APPEAL from a judgment of the Superior Court of Los Angeles County. Michael E. Pastor and William N. Sterling, Judges.
The opinion of the court was delivered by: Chaney, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part, reversed in part and remanded with directions.
Police officers stopped defendant Bryant Bennett because he was illegally parked in a red, no parking zone. Following their initial stop of defendant, the officers discovered cocaine base and drug paraphernalia in defendant's car. Defendant was convicted of possession of cocaine base for sale and possession of cocaine base.
Defendant makes two arguments on appeal. First, he claims the trial court improperly denied his motion to suppress evidence found after the officers stopped him. Defendant argues the police officers violated his constitutional rights because they stopped him based only on a parking violation subject to civil (not criminal) enforcement. Second, defendant argues his conviction for possession of cocaine base must be reversed because it is a necessarily included offense of possession of cocaine base for sale, for which he was also convicted.
Although we disagree with defendant's argument concerning his motion to suppress, we agree that his conviction for possession of cocaine base must be reversed. Accordingly, we affirm in part and reverse in part.
The relevant facts are not in dispute and are taken primarily from the hearing on defendant's motion to suppress.
Just before 8:00 p.m. on October 10, 2009, two Los Angeles Police Department officers were driving through an area of Los Angeles*fn2 when they noticed a Lincoln Town Car parked illegally. The Town Car was parked next to a red curb marked as a fire lane--a violation of the Vehicle Code. The officers also noticed that, although the front driver side window was rolled down, the front passenger side window was darkly tinted--also a violation of the Vehicle Code. Defendant was in the driver's seat, and a woman was sitting in the backseat.
1. Police Ordered Defendant to Stop the Car.
The officers decided to cite defendant for parking in the fire lane and for having improperly tinted windows. The officers parked their patrol car opposite the illegally parked Town Car, got out, and headed across the street toward the car. They each illuminated the Town Car with a flashlight as well as with their patrol car spotlight. When the officers were about five feet from the driver's side of the Town Car, defendant looked at them, put the car in drive and "lurched forward" about three feet. The officers ordered him to stop, which he did.
2. Defendant Tossed Something to the Car Floor and Police Told Defendant to Get Out of the Car.
Not knowing what defendant would do next, the officers saw him put the car in park, lean forward and toss something onto the driver side floor of the car. At that point, one of the officers told defendant to get out of the car, which he did.
3. Police Arrested Defendant and Searched Defendant and the Car.
As defendant opened the door to get out of the car, one officer--who had been standing next to the car waiting for defendant--saw what he believed to be rock cocaine in a clear plastic bag on the driver side floor of the car. The officer photographed the bag and its contents and examined them. He then arrested defendant based, not on a parking violation, but on the suspected presence of cocaine.
Following defendant's arrest, the officers searched the Town Car and defendant. In the car, they found over 100 clear baggies, an electronic scale, and a razor blade with an off-white substance resembling rock cocaine on the blade. On defendant, they found $57 in cash. Later, the police crime lab confirmed the substance in the bag defendant had tried to hide was indeed crack cocaine.
4. Defendant Is Charged, Tried and Convicted.
Defendant was charged with possession of cocaine base for sale (count one) and transportation of cocaine base (count two). As to both counts, it was alleged defendant had suffered three prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a), and had served one prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
Defendant moved unsuccessfully to suppress the evidence found in the Town Car. Defendant argued the police had no right to detain him based on his parking violation because it was not a crime, but rather was a violation of the Vehicle Code subject to civil penalties.*fn3 The trial court continued the hearing on the motion to suppress, allowing defense counsel additional time to research the issue. At the ...