People v. Roy

THE PEOPLE, Plaintiff and Respondent, v. RAELENE ROY, Defendant and Appellant.

F075825

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

May 7, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BF163756B)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush and Craig Phillips, Judges.

Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- A jury convicted Raelene Roy (defendant) of receiving a stolen vehicle in violation of Penal Code¹ section 496d. Defendant's appeal challenges the legality of a traffic stop that resulted in her arrest and prosecution. Alternatively, she claims to have been prejudiced by a misstatement of law made during the People's rebuttal argument at trial.

In supplemental briefing, defendant argues her conviction must at least be reduced from a felony to a misdemeanor because of changes in the law effectuated by the Safe Neighborhoods and Schools Act of 2014 (Proposition 47). Lastly, in light of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), defendant challenges sentencing enhancements imposed pursuant to former subdivision (b) of section 667.5. We will instruct the trial court to strike those enhancements, but we affirm the remainder of the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2015, Leeroy S. and his fiancée (the couple) began renting a three-bedroom house in the town of Oildale. A few weeks later, the couple agreed to sublet a room to defendant for $300 per month. Defendant and the fiancée were coworkers.

During the relevant time period, Leeroy possessed and drove a 2005 Nissan Altima sedan. The car was registered to his parents. Defendant had her own car, but Leeroy occasionally gave her rides in the Altima and she would have regularly seen the Altima parked in the driveway of the home.

In late 2015, the couple informed defendant she would need to move out. Although defendant had been paying her rent, the fiancée was pregnant and the couple expressed a desire to have more space for their family. However, by December they had allowed two more people to move into the house: the fiancée's best friend and thefiancée's adult daughter. Shortly thereafter, the couple asked defendant to vacate the premises within 30 days. Defendant replied, "'Serve me. I know my rights.'"

On or about January 9, 2016, the fiancée's purse disappeared from inside the home. She had left it on the kitchen counter before going to bed, but the next morning it was nowhere to be found. Whoever took the purse also acquired a spare key to the Nissan Altima, which had been attached to the exterior of the purse. The fiancée reported the incident to police but did not expressly accuse defendant of stealing the purse.

On or about January 24, 2016, the Altima was stolen from outside of the residence. Leeroy had seen the vehicle parked in his driveway at approximately 10:30 p.m. and by 5:30 a.m. it was gone. There were no signs of forced entry (no broken glass) nor any indication the car's antitheft alarm had gone off. Leeroy filed a police report and a claim with his insurance carrier. Defendant ostensibly took it upon herself to investigate the matter and informed the couple of leads she was pursuing, but those efforts appeared fruitless. The couple finally parted ways with defendant at the end of February, when everyone moved out of the house.

On March 23, 2016, Kern County Sheriff's deputies located the Altima during a traffic stop. The original paint had been covered over with a black primer, the upgraded rims Leeroy had put on the car were missing, and the interior was cluttered with toiletries, cosmetics, clothing, and documents bearing defendant's name. Defendant had been driving the vehicle and made incriminating statements when questioned during the stop. She and her passenger, A.G., were arrested and transported to the county jail.

Searches conducted incident to the arrests yielded no contraband. The deputies found a lug nut in A.G.'s pocket and seized a handwritten bill of sale from inside the car. The bill of sale purported to memorialize defendant's purchase of the vehicle on March 16, 2016, from third party owners for the price of $2,500. However, defendant allegedly admitted the document was fraudulent.

The arresting deputies later claimed to have found 18 grams of packaged methamphetamine and three grams of packaged heroin in the back of their patrol car. These items were discovered several hours after the suspects had been booked into jail, but the deputies maintained nobody else had entered the vehicle during their shift. The drugs were allegedly found on the "rear driver's side floorboard where [defendant] had been seated."

Defendant and A.G. were jointly tried on felony counts of receiving a stolen vehicle (§ 496d, subd. (a)). Defendant faced additional drug charges. For sentencing purposes, defendant was alleged to have suffered a prior vehicle-taking conviction (§ 666.5, subd. (a)) and to have served three prior prison terms within the meaning of former subdivision (b) of section 667.5.

The jury acquitted A.G. Defendant was found guilty of receiving a stolen vehicle but not guilty of the drug charges. In a bifurcated proceeding, the trial court made true findings on the section 666.5 allegation and two of the section 667.5 allegations. The third prior prison term allegation was rejected. Defendant received a six-year jail sentence calculated by the upper term of four years and two consecutive one-year enhancements. (See § 1170, subd. (h) [felony jail sentencing].)

DISCUSSION

I. Denial of Motion to Suppress Evidence

A. Background

Pursuant to section 1538.5, defendant moved to suppress all evidence against her as the product of an unlawful detention. The motion was heard over the course of two days. The first day of testimony consisted of the following account by Deputy Daniel Garcia.

On the afternoon in question, Deputy Garcia rode in the passenger seat of a marked patrol car driven by Deputy Chris Cooper. While in Oildale, Deputy Garciaobserved a Nissan Altima "exit an alley travelling north on a side street and then make an abrupt turn traveling west on Decatur Street." He noted the Altima was "driving at a speed faster than what would be normal for travelling out of an alley and it also did not brake when it made the west turn onto Decatur."

The patrol car followed the Altima as it continued westbound, stopped at an intersection, turned and went south on Oildale Drive, then made another "abrupt turn" onto Belle Avenue. The Altima "was travelling faster than the flow of traffic," and, from Deputy Garcia's perspective, "it seemed as if the vehicle was speeding." When further examined on the issue of speed, he explained: "When it was travelling westbound on Decatur Street, it's a residential neighborhood and the vehicle appeared to be moving faster than 25 miles an hour based on the visual of the actual movement of the vehicle versus the other vehicles in the same street."

After turning onto Belle Avenue, the Altima pulled over without any prompting from the deputies. In other words, the driver made a spontaneous decision to stop the car. The deputies parked behind the vehicle before activating their rooftop light bar. Next, Deputy Garcia "got on the radio and told dispatch [they] were stopping a Nissan Altima and gave them [their] location and the plate of the vehicle."

Deputy Garcia testified to hearing the dispatcher indicate "the registration was returning expired on a 1997 Ford." At that point, defense counsel made a Harvey/Madden² objection. The trial court sustained the objection but later questioned its purpose since defendant's motion expressly concerned "the initial traffic stop." Defense counsel argued the evidence had revealed a lack of justification for any "further detention." The hearing was continued pending testimony by additional witnesses.

When the proceedings resumed, a clerical employee of the Kern County Sheriff's Office testified to having previously obtained information from Leeroy regarding his missing sedan, including the plate characters and vehicle identification number (VIN), and entering the data into a "stolen vehicle system" that is available to "[a]ll law enforcement." The next witness was Deputy Cooper, who briefly testified to hearing defendant admit she knew the Altima was a stolen vehicle. The trial court asked about the relevance of this testimony, and the prosecutor answered, "[I]t provides corroboration to the records check done by [Kern County Sheriff's Office], essentially to show that law enforcement did not make up or imagine the information that they received from the records check."

Deputy Garcia was recalled by the People to further explain his actions before and during the traffic stop. This testimony revealed he and Deputy Cooper had been asked to "try and stop" a certain black Nissan Altima with an expired license plate. The request was made by a probation officer and a narcotics investigator who had been surveilling defendant, knew she was driving the car, and wished to obtain her current address in order to execute a search warrant. The deputies were told when and where the stop could be made, and they had been waiting for the vehicle to emerge from the alley next to Decatur Street.

After initiating the stop on Belle Avenue and running the license plate, Deputy Garcia exited...