People v. Pena

THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO PENA, Defendant and Appellant.

C080140

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

May 20, 2016

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 14F05724)

A jury found defendant Alejandro Pena guilty of knowingly bringing a controlled substance into jail, a felony, and misdemeanor possession of cocaine. The trial court sentenced him to six years in prison.

Defendant now contends the trial court erred in denying his motion to suppress illegally seized evidence. (Pen. Code, § 1538.5.) We find no error in the denial of the motion to suppress. Defendant also contends the abstract of judgment must be corrected to reflect that his conviction for possession of a controlled substance was a misdemeanor rather than a felony, and that his total sentence was six years. We agree.

We will affirm the judgment and direct the trial court to correct the abstract of judgment.

BACKGROUND

At approximately 3:30 in the morning, Sacramento Police Officer Clayton Whitcomb was patrolling the Oak Park area. He contacted defendant, obtained his identification, and ran a records check. Officer Whitcomb learned defendant had a prior arrest history and asked if he could search defendant for anything illegal. Defendant agreed. In the search, Officer Whitcomb found a baggie containing 0.72 grams of cocaine. Officer Whitcomb arrested defendant and transported him to the county jail. Prior to being searched at the jail, Officer Whitcomb asked if defendant had anything else illegal on him, and defendant said he did not. Deputies found three additional bags of cocaine, with a total weight of over three grams, in a secret pocket in defendant's jeans.

The jury found defendant guilty of knowingly bringing a controlled substance into jail (Pen. Code, § 4573 -- count 1)¹ and misdemeanor possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a) -- count 2). In bifurcated proceedings, the trial court found true allegations that defendant had a prior felony conviction (§§ 667, subds. (b)-(i), 1170.12) and committed the offenses while out on bail (§ 12022.1, subd. (b)). The trial court sentenced defendant to six years in prison, consisting of two years on count 1, doubled for the prior conviction, a consecutive two years for the on-bail enhancement, and a concurrent 90 days for the misdemeanor conviction. (The trial court also imposed various fines and fees.

DISCUSSION

I

Defendant contends the trial court erred in denying his motion to suppress evidence. We disagree.

A

Prior to trial, defendant filed a motion to suppress evidence under section 1538.5. He claimed Officer Whitcomb had unlawfully detained him, it was not a consensual encounter, Officer Whitcomb did not have reasonable suspicion to stop him, and he did not consent to the search. The People argued the encounter was consensual, Officer Whitcomb had probable cause to stop defendant, and defendant consented to the search.

At the suppression hearing, Officer Whitcomb testified he was driving his marked patrol car in the Oak Park area around 3:30 a.m. when he saw defendant riding his skateboard in the middle of the street going in the opposite direction. Officer Whitcomb thought it was suspicious that an individual in this particular residential area was out at 3:30 a.m. He also believed defendant had violated Vehicle Code section 21954, subdivision (a), which provides that pedestrians must yield to vehicles on the roadway. Officer Whitcomb turned his car around and followed defendant.

When Officer Whitcomb got close to defendant, he turned his spotlight on and illuminated him. Defendant stopped on the right side of the road, closer to the curb than the patrol car. Officer Whitcomb did not activate his police lights or siren and did not use the microphone in the vehicle. Officer Whitcomb got out of the patrol car and "engaged [defendant] in casual conversation for quite a while," asking why defendant was out so late, where he was coming from, and whether he had any identification on him. Defendant handed Officer Whitcomb his identification. Officer Whitcomb ran a records check and learned defendant had a criminal history which included a weapons charge. The records check took approximately three minutes. Officer Whitcomb testified this was not a traffic stop, it was a consensual encounter.

Officer Whitcomb asked defendant if he could search him. Defendant said he understood why. Officer Whitcomb had defendant step toward the patrol car and lock his hands behind his head. He asked defendant if he had anything illegal on him and defendant answered he had a folding knife in his pocket, but nothing else. OfficerWhitcomb asked if he could check and defendant consented to a search. During the search, Officer Whitcomb found a baggie containing cocaine and placed defendant under arrest.

Defendant testified he yielded to the right side of the road when he heard a vehicle behind him. Officer Whitcomb activated his spotlight, but not his lights, siren, or loudspeaker. Officer Whitcomb did not touch defendant or threaten him and did not draw his weapon. Officer Whitcomb spoke to him through the patrol car window for about 30 seconds to a minute, asked where he was going, and then asked for defendant's identification. Officer Whitcomb had his identification for about a minute, during which time defendant did not feel free to leave, "because when you are speaking to police officers, you got to respect their -- you know. You know you can't -- I never knew you could just walk away from them." He also did not feel comfortable leaving while Officer Whitcomb had his identification. He testified Officer Whitcomb did not ask to search him, but came up behind him and told him to put his hands on his head. Officer Whitcomb asked if he had anything illegal and he answered he had a pocket knife. Officer Whitcomb checked his pocket for the knife then continued to search.

The trial court found this was a consensual encounter without the trappings of a stop, because there was no use of emergency lights or siren and no use of force, but in any event the Vehicle Code violation could establish reasonable suspicion for a stop, in that Officer Whitcomb could in good faith believe the right of way had been violated. The trial court found Officer Whitcomb more credible than defendant and believed defendant had given consent to the search. Accordingly, the trial court denied the motion to suppress.

B

Not every encounter between the police and a citizen is protected by the Fourth Amendment. (In re Christopher B. (1990) 219 Cal.App.3d 455, 460.) Police contacts with individuals fall into three broad categories: (1) consensual encounters;(2) detentions; and (3) formal arrests. (In re Manuel G. (1997) 16 Cal.4th 805, 821.) A consensual encounter requires no objective justification and there is no restraint on a person's liberty. Accordingly, it does not trigger Fourth Amendment scrutiny. (People v. Bailey (1985) 176 Cal.App.3d 402, 405.) A detention "involves a seizure of the individual for a limited duration and for limited purposes" and is acceptable " 'if there is an articulable suspicion that a person has committed or is about to commit a crime.' " (Ibid.) An arrest also involves a seizure of the person and requires probable cause. (Ibid.)

We apply an objective test in determining whether a seizure has occurred. The issue is whether the officer's words and actions conveyed to a reasonable person that he was being ordered to restrict his movement. (People v. Celis (2004) 33 Cal.4th 667, 673.) We accept the magistrate's express or implied findings when supported by substantial evidence and determine independently whether the search or seizure was reasonable. (People v. Woods (1999) 21 Cal.4th 668, 673-674; People v. Watkins (2009) 170 Cal.App.4th 1403, 1408.)

"[T]here is 'no "bright-line" distinction between a consensual encounter and a detention.' " (People v. Linn (2015) 241 Cal.App.4th 46, 59.) A " 'consensual encounter between a police officer and a citizen can be transformed into a . . . detention . . . "if, in view of all the circumstances . . . a reasonable person would have believed that he was not free to leave." ' " (California v. Hodari D. (1991) 499 U.S. 621, 639 [113 L.Ed.2d 690, 705-706], quoting United States v. Mendenhall (1980) 446 U.S. 544, 554 [64 L.Ed.2d 497, 509].) "A seizure occurs whenever a police officer 'by means of physical force or show of authority' restrains the liberty of a person to walk away." (People v. Souza (1994) 9 Cal.4th 224, 229, quoting Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 [20 L.Ed.2d 889, 905].) "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of theperson of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." (Mendenhall, at p. 554; People v. Terrell (1999) 69 Cal.App.4th 1246, 1254.) "[O]ther relevant factors include the time and place of the encounter, whether the police indicated the defendant was suspected of a crime, whether the police retained the defendant's documents, and whether the police exhibited other threatening behavior." (Linn, at p. 58.)

"[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free 'to disregard the police and go about his business,' [citation], the encounter is consensual and no reasonable suspicion is required. The encounter...