P. v. Baytop






Filed 9/30/11 P. v. Baytop CA1/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. CLARENCE BAYTOP, Defendant and Appellant.

A128528 (San Mateo County Super. Ct. No. SC068923A)

Clarence Baytop (appellant) appeals from a judgment of conviction entered after he pleaded no contest to possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)). He contends the trial court: (1) erred in denying his motion to suppress evidence; and (2) should have awarded him additional sentencing credits under Penal Code section 4019.[1] We reject the contentions and affirm the judgment.
Factual and Procedural Background
An information was filed June 30, 2009, charging appellant with possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a), count 1), receiving stolen property (§ 496, subd. (a), count 2), and possessing paraphernalia for ingesting a controlled substance (Health & Saf. Code, § 11364, count 3). The information further alleged that appellant had four prior strikes (§ 1170.12, subd. (c)(1)), had suffered numerous prior convictions that rendered him presumptively ineligible for probation (§ 1203, subd. (e)(4)), and had served four prior prison terms (§ 667.5, subd. (b)).
Appellant filed a motion to suppress evidence on September 2, 2009. At the hearing on the motion, San Bruno Police Officer Seann Graham testified he responded to a condominium complex at approximately 9:57 a.m. on June 4, 2009, after being “dispatched on a suspicious person’s call in the area.” Graham had been to the complex on numerous prior occasions to investigate crimes such as vehicle burglaries and thefts and domestic violence. Dispatch advised him “there was a black male adult and black female adult in the area of the parking garage . . . who were looking for a vehicle, [and] did not live at the complex.” The man had dreadlocks and was wearing a black beanie, a blue sweatshirt, jeans, and brown slippers. The woman was wearing a black beanie, black jacket, and jeans. Both people were approximately 38 years old.
While in front of one of the buildings, Graham saw two people who matched the description. One of them was appellant. Graham stopped his car and approached them on a public sidewalk, told them why he was contacting them and asked if he could speak to them. Graham believed that at that point, appellant was free to “say no and continue walking down the path.” Graham asked appellant and the woman for their names, if they lived at the complex, and what they were doing there. Appellant was cooperative and responded he did not live at the complex and was looking for his car. He said he was visiting a friend but did not know the friend’s last name and did not know the building number or apartment number in which she lived. Shortly thereafter, three other officers arrived at the scene.
Officer Mark Lillie testified he went to the condominium complex to assist Graham and made contact with appellant and a woman, both of whom were sitting down. Lillie did not know whether another officer had asked appellant to sit down, or if he had voluntarily sat down. Lillie believed at that point that appellant was not free to leave, although he never communicated that to appellant. He asked appellant to stand up. If appellant had said, “No. Thank you. I think I will just sit right here,” that “would have been fine” for Lillie. After appellant stood up, Lillie asked if he could speak to appellant. Appellant responded he had been looking for his car, a Toyota Corolla, and could not find it. He had spent the evening at “Natalie’s apartment” at the condominium complex. Lillie asked appellant Natalie’s last name and building and apartment number, and appellant responded he did not know.
Lillie then asked appellant if he could search him. Appellant, who was holding a brown paper bag in his hand, put the bag down by his feet on the sidewalk, turned around, and put his hands up. Lillie, who believed that appellant, by his actions, was approving of being searched, searched appellant. Appellant did not express any objection while being searched and did not pull away. During the search, Lillie found a clear glass pipe with “brownish” residue inside. When Lillie asked appellant if he could search the bag he had placed on the ground, appellant said, “Sure. It is not mine. It is Natalie’s.” Inside the bag was a clear glass pipe similar to the one found on appellant, two lighters, some tobacco to smoke in a pipe, a larger glass pipe, a credit card with appellant’s name, and a clear plastic or cellophane bag with a white rock inside. Based on his experience, Lillie believed the white rock was cocaine. During the encounter, appellant did not seem at all agitated and did not appear to be under the influence of a controlled substance. Lillie asked the reporting party, who was in the area, whether appellant and the woman were the people he had called the police about. The reporting party said they were, and that he had driven them around in a cart looking for a car.
Mary Baytop, appellant’s mother, testified she owns a Toyota Corolla and that she gave her son permission to drive the car on June 4, 2009. On June 6, 2009, the car was towed from the condominium complex at which appellant encountered police. Mary Baytop’s brother testified that Mary Baytop suffers from memory loss and is on medication for her condition.
Appellant testified he was at the condominium complex on June 4, 2009, because he was visiting a friend named Natalie Molinen, who lived in building seven, unit 257. He had known Molinen “for a little over six months” at the time and knew her last name started with an “M” but had forgotten her last name the morning of his arrest. He had given Molinen a ride home the night before in his mother’s Toyota Corolla and had parked the car in Molinen’s designated parking stall. Later, when he and his friend Kozera McFadden went to go look for the car, Natalie did not accompany him to her parking stall and appellant could not find his car because “it is such a huge place up there.” He walked to the office and asked for assistance in finding his car. A security guard brought a golf cart and drove appellant and McFadden into two garages but became impatient and frustrated and told them to get off the cart because he “didn’t have time for this.” Appellant did not return to Molinen’s apartment when he had difficulty finding his car because “it is impossible to gain entrance into the buildings without the residents knowing.” He did have her phone number but did not call her because he was instructed to go to the office to get assistance in finding his car.
Later, an officer with the last name Helu arrived at the complex and immediately asked appellant to sit down and drop the bag he was holding. Graham was not the officer who first contacted appellant. Helu gave appellant “some kind of field sobriety tests . . . and hit [him] on the shoulder and told [him] to pay attention.” Graham and another officer, Boland, were about 20 yards away “watching all of this.” Later, Lillie arrived and picked up the bag without appellant’s permission and ordered Graham to search appellant. Appellant told the officers he was “not on any paper,” i.e., not on probation or parole, and therefore did not have to be searched. He specifically told Lillie he could not search the bag, but Lillie picked it up anyway, stating his “badge” gave him permission to search it. When appellant told the officers he was looking for his car, “they called [him] a liar.” Appellant stated he turned around and put his hands up “when ordered to do so.”
On December 14, 2009, appellant pleaded no contest to count one, possession of a controlled substance, and admitted one prior strike under section 1170.12, subdivision (c)(1), one prior under section 1203, subdivision (e)(4), and four prison priors under section 667.5, subdivision (b). The remaining counts were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). At sentencing, the trial court granted appellant’s motion to strike the prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and stayed all of the prison priors under section 667.5, subdivision (b). The court sentenced appellant to the middle term of two years in state prison and awarded him 324 actual days of credit and 162 days of conduct credit.
Discussion
Motion to Suppress Evidence
Appellant contends the trial court erred in denying his motion to suppress evidence. We disagree.
Section 1538.5, subdivision (a)(1), provides in part: “A defendant may move . . . to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: [¶] (A) The search or seizure without a warrant was unreasonable.” “The clear implication of the subsection is that the evidence need not be suppressed, if the seizure was reasonable. To state the implication positively: a warrantless seizure of evidence may be valid if reasonable cause for the seizure exists.” (People v. Curley (1970) 12 Cal.App.3d 732, 746.) “In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. [Citation.]” (People v. Miranda (1993) 17 Cal.App.4th 917, 922; see also People v. Ingram (1993) 16 Cal.App.4th 1745, 1750.)
The trial court properly denied the motion to suppress evidence on the ground that the investigative detention was reasonable.[2] In order to be “reasonable,” an investigative detention must be supported by “reasonable suspicion,” which has been described as a belief “that criminal activity is afoot and that the person to be stopped is engaged in that activity.” (People v. Souza (1994) 9 Cal.4th 224, 230.) The level of suspicion is less than that required for probable cause. (United States v. Sokolow (1989) 490 U.S. 1, 7 [109 S.Ct. 1581; 104 L.Ed.2d 1]; People v. Souza, supra, 9 Cal.4th at p. 230.) The observed conduct need not be obviously criminal, and “wholly lawful conduct might justify the suspicion that criminal activity was afoot.” (Reid v. Georgia (1980) 448 U.S. 438, 441 [100 S.Ct. 2752; 65 L.Ed.2d 890].) “ ‘[T]he relevant inquiry is not whether particular conduct is “innocent” or “guilty” but the degree of suspicion that attaches to particular types of noncriminal acts.’ ” (United States v. Sokolow, supra, 490 U.S. at p. 10.) “Articulating precisely what ‘reasonable suspicion’ . . . means is not possible” because it is a “commonsense, nontechnical conception[] that deal[s] with ‘ “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” ’ ” (Ornelas v. United States (1996) 517 U.S. 690, 696 [116 S.Ct. 1657; 134 L.Ed.2d 911].) The “legal principle[]” is not a “ ‘finely tuned standard[]’ comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. [Citation.] [It is instead a] fluid concept[] that take[s] [its] substantive content from the particular contexts in which the standards are being assessed.” (Ibid.) The “whole picture” must be considered in determining whether the police had a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Untied States v. Cortez (1981) 449 U.S. 411, 417-418 [101 S.Ct. 690; 66 L.Ed.2d 621].) The purpose of permitting a detention based on a reasonable suspicion of criminal activity is to “ ‘enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.’ ” (People v. Leyba (1981) 29 Cal.3d 591, 599.)
Here, as appellant concedes, the initial contact was proper because Graham merely asked appellant and his friend whether he could ask some questions, and appellant agreed. (See United States v. Drayton (2002) 536 U.S. 194, 200-201 [122 S.Ct. 2105; 153 L.Ed.2d 242] [the Fourth Amendment is not implicated when an officer approaches an individual in a public setting and asks if he or she would answer some questions, provided the officer does not induce cooperation by coercive means].) Thereafter, appellant did not recall the last name, building number, or apartment number of the person he had just been visiting. Further, Graham had visited the condominium complex on numerous prior occasions to investigate various crimes including car theft and burglary (see People v. Souza, supra, 9 Cal.4th at pp. 240-241 [presence in a high crime area is relevant to determining the possible criminality of a person’s conduct]), and appellant and his friend matched the “suspicious person[]” description that had been provided by the reporting party, a security guard. These facts, combined, created a situation where Graham could reasonably suspect that appellant was not at the complex for legitimate reasons, i.e., “that criminal activity was afoot” (id. at p. 230), and that further investigation was warranted.
Further, the trial court’s finding that appellant voluntarily consented to the search was supported by substantial evidence. (See Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227 [93 S.Ct. 2041; 36 L.Ed.2d 854] [voluntariness of consent is a question of fact to be determined in light of all the circumstances].) During the short period of detention, Lillie asked appellant if he could search him, and appellant’s act of turning around and putting his hands up gave Lillie reasonable grounds to believe appellant was consenting to being searched. Appellant did not object or move away from Lillie as he was being searched, and said “Sure,” when Lillie asked if he could also search his bag. Appellant claims the consent was “coerced through the illegal detention” and was therefore involuntary. Having concluded the detention was legal, we reject this assertion.
Sentencing Credits
Before January 25, 2010, section 4019 provided that “for each six-day period in which a prisoner is confined in or committed to” a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Former § 4019, subds. (b) & (c); Stats. 1982, ch. 1234, § 7, p. 4553.) The statute also provided that “if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.” (Former § 4019, subd. (f).) Effective January 25, 2010, section 4019 was amended to provide for the accrual of presentence credits at twice the previous rate.[3] (§ 4019, subd. (f) [“if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody”]; see also Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) Defendants who are required to register as sex offenders, defendants committed for a serious felony, and defendants who have a prior conviction for a serious or violent felony are exempted from eligibility for the enhanced credits. (§ 4019, subds. (b)(2) & (c)(2).)
Appellant contends the trial court, which granted his Romero motion, should have awarded him additional sentencing credits under section 4019 because “the same considerations that informed its ruling on the Romero motion suggest that it also intended to strike the ‘strike’ for purposes of calculating those credits.” He alternatively requests that we remand the matter to the trial court to exercise its discretion whether to strike the prior strike for the purpose of awarding him additional credits under section 4019. Appellant’s contention fails because the trial court did not have the authority to strike appellant’s prior strike for the purpose of awarding him additional sentencing credits.
Section 1385, subdivision (a), authorizes the trial court to “order an action to be dismissed” in the furtherance of justice. The court’s authority includes the power to strike or dismiss a sentencing allegation, including an allegation that the defendant has suffered a prior serious or violent felony conviction, where the trial court determines the defendant should not be subjected to a statutorily increased penalty that would otherwise apply. (People v. Garcia (1999) 20 Cal.4th 490, 496.) However, the fact that a sentencing allegation is stricken under section 1385 “ ‘is not the equivalent of a determination that [the] defendant did not in fact suffer the conviction.’ ” (Id. at pp. 496, 499.) Even after a court strikes or dismisses a prior conviction allegation, “the [prior] conviction remains part of the defendant’s personal history, and a court may consider it when sentencing the defendant for other convictions, including others in the same proceeding.” (Id. at p. 499; see also In re Varnell (2003) 30 Cal.4th 1132 (Varnell).)
In Varnell, the defendant pleaded no contest to a felony drug possession charge after the trial court granted his Romero motion. (In re Varnell, supra, 30 Cal.4th at p. 1135.) When the defendant requested dismissal of the prior for the additional purpose of rendering him eligible for probation under the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36), the trial court denied the request, ruling that dismissal of the prior had not eliminated “the fact of the prior conviction.” (Ibid.) The Court of Appeal held the trial court had discretion under section 1385 to “disregard ‘historical facts’ in determining a defendant’s eligibility under Proposition 36.” (Id. at p. 1136.) The Supreme Court reversed the Court of Appeal, stating that the dismissal of a charged prior conviction is not a “ ‘determination that defendant did not in fact suffer the conviction’ ” and that the trial court lacked the power to disregard a “sentencing factor” that rendered the defendant ineligible for Proposition 36 sentencing. (Id. at p. 1138.) The Supreme Court further held that because the denial of probation under Proposition 36 did not increase the defendant’s penalty, his prior conviction was not a matter that had to be pleaded and proven. (Id. at pp. 1141-1142 [declining to find a statutorily implied pleading and proof requirement or a pleading and proof requirement as a matter of due process].)
Applying Varnell’s analysis to the present case, we conclude that appellant’s prior strike for purposes of determining eligibility for enhanced custody credits under section 4019 was a “sentencing factor” that did not increase his penalty and did not have to be pleaded and proven. Accordingly, that fact was not subject to a motion to dismiss under section 1385, and the trial court did not err in failing to consider appellant’s Romero motion for the purpose of awarding him additional sentencing credits under section 4019.[4]
Relying on cases including People v. Doganiere (1978) 86 Cal.App.3d 237 and People v. Hunter (1977) 68 Cal.App.3d 389 for the proposition that the loss of presentence conduct credit does constitute “increase[d] ‘punishment,’ ” appellant contends that a prior strike conviction “must be pled and proven to affect the calculation of section 4019 credits because restricting conduct credits increases ‘punishment’ for defendants.” The cases, however, are distinguishable because they involved the issue of whether an amendment to a sentencing statute that increased custody credits effectively decreased punishment for purposes of determining whether the amendment applied retroactively. (People v. Doganiere, supra, 86 Cal.App.3d at pp. 239-240 [concluding the statute applied retroactively because additional conduct credits effectively mitigated punishment]; People v. Hunter, supra, 68 Cal.App.3d at pp. 392-393 [same].) The analysis that applies in determining whether a statute impliedly requires pleading and proof and the analysis for determining whether a statute applies retroactively are based on different considerations. Pleading and proof requirements are based on considerations of fairness and due process. (See Varnell, supra, 30 Cal.4th at pp. 1141-1143.) In contrast, retroactivity is based on the notion that when the Legislature reduces a sentence or the amount of time to be served by a particular class of defendants, and does not specify whether the changes are to be applied prospectively only, the Legislature must have concluded that the previous penalty was too severe and must have intended that the provisions more favorable be applied “to every case to which it constitutionally could.” (In re Estrada (1965) 63 Cal.2d 740, 745.) Thus, cases involving whether something constitutes an increase in punishment for purposes of retroactivity are not determinative of the issue before us in this case.
Disposition
The judgment is affirmed.



_________________________
McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.

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