P. v. Bealer
Filed
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
STATE OF
THE PEOPLE, Plaintiff and Respondent, v. ANTWOINE MARQUISE BEALER, Defendant and Appellant. | D047691 (Super. |
APPEAL from a judgment of the Superior Court of San Diego County, Allan J. Preckel, Jan I. Goldsmith, Judges. Affirmed.
A jury convicted Antwoine Marquise Bealer of one count of robbery (Pen. Code,[1] § 211), and the trial court found that Bealer had suffered a prior serious felony conviction and two prior strikes (§ 667, subds. (a)(1), (b) - (i)). The court sentenced Bealer to 30 years to life in prison and added an additional five-year term for Bealer's violation of his probation conditions in an earlier case.
Bealer appeals. He contends that his conviction must be reversed because the trial court erred in denying his motion to suppress evidence that was allegedly seized in violation of the Fourth Amendment. Bealer also contends that his sentence is erroneous because the trial court abused its discretion in declining to exercise its authority under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531 (Romero) to strike one of his prior strikes and impose a more lenient sentence.
FACTS
A. The Facts Underlying the Instant Offense
In the early morning hours of
Dale opened one of the store's cash registers and emptied it of approximately $200, placing the money, stacked by denomination, in Bealer's black plastic grocery bag. Bealer took the bag and indicated that he wanted money from another register. When Dale told Bealer that he did not have the code to open that register, Bealer ran from the store, heading west. As soon as Bealer left, Dale called police and activated the store's security alarm.[2]
B. Facts Underlying the Traffic Stop
At the time of the robbery, Deputy Sheriff Efrain Garcia was on patrol in the Lemon Grove area of San Diego. He received a radio call at approximately
Apart from Bealer's car, there were " no other vehicles in any direction." Garcia made a U‑ turn to get behind Bealer's car. While following Bealer's car, Garcia communicated Bealer's license plate number to his dispatcher and was informed that the car was registered to an address in the City of San Diego. Garcia could not see into the car and was only able to observe " the silhouette of one occupant, the driver." Garcia then observed Bealer make a right turn into a densely populated residential area with narrow streets -- an area that was " hard . . . to get through" and, in Garcia's opinion, a route that was inconsistent with a person driving back to a San Diego address. Garcia activated the overhead lights on his patrol car and " initiated a traffic stop" of Bealer's vehicle.
Bealer slowed but did not stop immediately; instead, he traveled another block and came to a stop at a stop sign. Bealer did not pull over but instead stopped right in " the middle of the intersection," which Garcia found " odd" because prior to reaching the stop sign there were " plenty of areas, clear areas for the vehicle to stop." At the time of the stop, Garcia had still not observed " any other vehicles or people out . . . in the area at all."
Once Garcia approached Bealer's car, Bealer, the sole occupant, " appeared extremely nervous" and " fumbled around for quite a while, looking for his I.D. and vehicle registration." Garcia asked him where he was coming from, and Bealer stated he was at a friend's house in Lemon Grove; Bealer was unable to tell Garcia his friend's address or how to get there. While talking with Bealer, Garcia observed that Bealer -- who was wearing a long-sleeved, black hooded sweatshirt and black jeans -- appeared to meet the clothing and physical description of the robber contained in the radio call.
When a second officer, Deputy Michael Rand, arrived at the scene, Garcia asked Bealer to step out of the car. Rand performed a " cursory patdown" of Bealer to determine if he had a weapon. During the patdown, Rand noticed a bulge in Bealer's pants pocket. Rand asked Bealer if Rand could remove it, and Bealer consented. The bulge consisted of $172 in cash, separated into various small denominations.
After the patdown, Garcia shined a flashlight into Bealer's car and observed the handle of what appeared to be a semiautomatic pistol sticking out from underneath the driver's seat. Garcia removed the pistol, which turned out to be a replica pistol. The pistol " looked very real" but was made of plastic and had no magazine; it had black electrical tape covering the opening where the magazine would normally be. Garcia also observed a black knit cap with cut-out eye holes next to the open passenger's side window on the ground and a black plastic bag on the front seat next to the driver's seat.
DISCUSSION
I
The Trial Court Did Not Err in Denying Bealer's Motion to Suppress Evidence
On appeal, Bealer contends the trial court erred in denying his motion to suppress the evidence found on his person and in his car. Bealer argues that Deputy Garcia's stop of his vehicle was unlawful under the Fourth Amendment because Garcia did not have a reasonable suspicion that Bealer was involved in the robbery, but rather stopped his vehicle based on a " mere curiosity or hunch." We evaluate this contention after summarizing the trial court's ruling and setting out the relevant legal principles.
A. The Trial Court's Ruling Denying Bealer's Suppression Motion
Prior to trial, Bealer moved to suppress the evidence recovered from his car during the traffic stop on the grounds that the stop was unlawful under the Fourth Amendment. After hearing Deputy Garcia's testimony, the trial court denied the motion, concluding that the " stop was lawful" and the " detention that flowed from the stop was not at all unreasonable in scope or duration." In its ruling, the court stated that " Garcia saw [Bealer] coming at him on Kempf [Street] south of Golden Avenue . . . approximately a block and a half directly south of the business in question," and emphasized that Bealer's car was " the only vehicle on the roadway [and] this is the roadway that runs directly away from the victimized business." In addition, the court noted that it was "
B. Applicable Legal Principles
The Fourth Amendment prohibits " unreasonable searches and seizures" by the government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. (
In evaluating a challenge to a trial court's ruling on a motion to suppress evidence, we employ a two-tiered standard of review. First, " [w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence." (Glaser, supra, 11 Cal.4th at p. 362.) Second, " we exercise our independent judgment" in determining if, on the facts so found, the challenged search or seizure violated the Fourth Amendment. (Ibid.)
C. The Stop Was Lawful Under the Fourth Amendment
Applying the legal principles described above, we conclude that Deputy Garcia's investigatory stop of Bealer's car was lawful under the Fourth Amendment.[4]
Garcia was not acting on a " mere hunch" when he stopped Bealer, but had a " 'particularized and objective basis' " for suspecting that Bealer was involved in crime. (Arvizu, supra, 534 U.S. at pp. 273-274.) Immediately prior to encountering Bealer's car, Garcia received a radio call that the ARCO gas station had " just been robbed." Garcia then began driving toward the gas station, which was only three blocks away, and encountered Bealer's vehicle -- the only vehicle (or pedestrian) in the area -- driving in the other direction. Given the late hour, the immediacy of the robbery, and the absence of any other vehicle or pedestrian traffic, these facts were sufficient to create a reasonable suspicion that Bealer was involved in the robbery.[5]
The instant case is directly analogous to People v. Conway (1994) 25 Cal.App.4th 385, 390 (Conway) and People v. Anthony (1970) 7 Cal.App.3d 751, 761 (Anthony), both of which upheld vehicle stops in virtually identical circumstances. In Conway, a police officer received a radio call that there was a burglary in progress. As he drove toward the location of the burglary, he observed and stopped a car driving out of the area. (Conway, at p. 388.) The court upheld the stop, stating:
" Less than two minutes after receiving the report of a burglary in progress, [the officer] saw a car leaving the area of the reported burglary. The time was approximately
In Anthony, the Court of Appeal upheld a traffic stop of a vehicle observed in the vicinity of a recent armed robbery based on the fact that the vehicle stopped was " the only vehicle seen in the vicinity at the time of and immediately following the commission of the robbery and was traveling away from the scene of the crime on one of the few through streets in the immediate vicinity." (Anthony, supra, 7 Cal.App.3d at p. 761.) The court explained:
" Obviously, the officers knew that criminal activity was afoot. They had just received a radio report of the armed robbery. Defendant's presence in an automobile in the immediate vicinity, within minutes after its commission, traveling away from the scene of the crime on a likely escape route, coupled with the fact that the vehicle was the only one on the streets and that the hour was shortly after 3 a.m. were sufficient to indicate to a reasonable man in the position of the officers that investigation of the automobile and its occupants were necessary to the proper discharge of their duties in connection with the robbery." (Anthony, supra, 7 Cal.App.3d at p. 761.)[7]
We agree with the general rule expressed in Anthony and Conway that: when an officer driving towards a crime scene from which a suspect has recently fled encounters one and only one vehicle leaving the vicinity of the crime, that officer has a reasonable suspicion to stop that vehicle. The instant case fits comfortably within that rule. Consequently, Deputy Garcia did not violate the Fourth Amendment when he stopped Bealer, and the trial court did not err in denying Bealer's suppression motion.
II
Bealer Has Failed to Demonstrate that the Trial Court Abused
Its Discretion by Refusing to Strike One of Bealer's Prior Strikes
Bealer, who had two prior " strike" convictions under the Three Strikes sentencing law was sentenced to 30 years to life in prison for the instant offense pursuant to the sentencing requirements mandated by those laws for repeat offenders. (See §§ 667, 1170.12.) Bealer contends that the trial court abused its discretion by refusing to strike one of his prior strikes prior to sentencing and impose a more lenient sentence. We evaluate this contention after setting out the relevant facts and applicable law.
A. Facts Relating to Bealer's Prior Strikes
Bealer's two prior strike convictions arose from a 2003 robbery that resulted in Bealer's pleading guilty to two felony offenses -- robbery (§ 211) and assault with a deadly weapon (§ 245, subd. (a)(1)).
The factual basis for that plea was as follows.[8] On
Bealer encountered Luis Gomez who was working at the front cash register, and asked him where the manager was; while doing so, Bealer simultaneously made jabbing motions forward with the knife. The knife came within about a foot of Gomez. When Gomez said that he did not know where the manger was, Bealer walked past him, and continued asking Wendy's employees where the manager was. Gomez then fled out of the restaurant and across the street.
Bealer next approached Lucero Samano, a Wendy's employee who was operating a cash register further inside the restaurant next to the drive-by window. Bealer pushed Samano with his left hand, and told her to open the cash register. Samano opened the register, and Bealer took money out of the register. Samano then ran into an office and locked herself in. Bealer continued asking other employees where the manager was until he was confronted by Chula Vista police officers who arrested him at gunpoint.[9]
After he pleaded guilty, the trial court sentenced Bealer to an upper term sentence of five years for robbery of Samano and three years concurrent for assault with a deadly weapon on Gomez. The court then stayed the entire prison term and placed Bealer on probation.[10]
B. The Sentence in the Instant Case
As he had at trial, Bealer represented himself at sentencing. The trial court began the discussion by announcing a tentative decision to sentence Bealer to 25 years to life plus 10 years, in accordance with the recommendation contained in the probation officer's report.[11] Bealer declined the court's offer to speak on his own behalf regarding the appropriate sentence, stating, " It won't matter. It's not going to make a difference what I say." The prosecutor urged the court to follow the recommendation of the probation officer, noting simply that the recommended sentence was in accord with the Three Strikes statute.
The court then sentenced Bealer to 25 years to life plus 10 years. The court noted that it had " considered and rejected striking the prior strike." It explained that " [t]he priors were in 2003, both assault with a deadly weapon and a robbery, pursuant to the strikes that were admitted and [to which Bealer] pled guilty pursuant to an agreement." The court concluded that it had " reviewed that file and [did] not find the basis for striking [a] strike." [12]
C. The Trial Court Did Not Abuse Its Discretion
On appeal, Bealer contends that the trial court abused its discretion in declining to strike at least one of the strike priors. We disagree. While Bealer's arguments might be persuasive were we deciding the issue in the first instance, we do not believe Bealer has carried his heavy burden of establishing that the trial court -- the tribunal that the Legislature empowered to make the determination -- abused its discretion.
A trial court may strike a finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony on its " own motion or upon the application of the prosecuting attorney . . . in furtherance of justice." (§ 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 158 (Williams), citing Romero, supra, 13 Cal.4th 497.) In determining whether to do so, the court " must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, at p. 161.)
The trial court's " failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, " ' " [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary." ' " (Id. at p. 376.) " ' " In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' " (Id. at pp. 376-377.) Second, " ' " '[a]n appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge,' " ' " and consequently, the trial court's " ' " decision will not be reversed merely because reasonable people might disagree." ' " (Id. at p. 377.) Taken together, these two precepts establish the overarching principle on review that " a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Ibid.)
In the instant case, there is no dispute that even though Bealer's two prior convictions resulted from the same case, by committing a third felony, Bealer came within the letter of the Three Strikes law as a third strike offender. (See § 667, subd. (e)(2)(A) [" If a defendant has two or more prior felony convictions . . . the term for the current felony conviction shall be an indeterminate term of life imprisonment" ]; §§ 667, subd. (d)(1) [defining qualifying felonies], 1192.7, subd. (c)(19), (31) [listing robbery and assault with a deadly weapon as qualifying felonies]; People v. Benson (1998) 18 Cal.4th 24, 35 (Benson) [" the electorate and the Legislature rationally could -- and did -- conclude [in enacting the Three Strikes law] that a person who committed additional violence in the course of a prior serious felony (e.g., shooting or pistol-whipping a victim during a robbery, or assaulting a victim during a burglary) should be treated more harshly than an individual who committed the same initial felony, but whose criminal conduct did not include such additional violence" ].) Consequently, the trial court was required to impose a life sentence unless it found circumstances that demonstrated that Bealer was " outside the [sentencing] scheme's spirit, in whole or in part." (Williams, supra, 17 Cal.4th at p. 161; see §§ 667 subd. (f)(1), 1170.12, subd. (d)(1) [the Three Strikes law " shall be applied in every case in which a defendant has a [qualifying] prior felony conviction" ].)
Bealer relies primarily on People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos) for his contention that the trial court abused its discretion. The Burgos court, which reversed a trial court's decision not to strike a prior strike, relied on our Supreme Court's opinion in Benson[13] that " strongly indicates that where the two priors were so closely connected as to have arisen from a single act, it would necessarily constitute an abuse of discretion to refuse to strike one of the priors." (Burgos, at p. 1215, italics added.) Burgos is thus distinguishable because in that case the prior strikes for attempted robbery and attempted carjacking literally arose from " a single act" -- an unsuccessful effort to steal a car from one victim.[14]
Here, unlike the defendant in Burgos, Bealer's prior strikes were the results of two separate criminal acts, each occurring at discrete times and visited upon separate victims -- a distinction that our Supreme Court indicated would be dispositive in this circumstance. (Benson, supra, 18 Cal.4th at p. 36, fn. 8 [distinguishing situation where " two prior felony convictions are so closely connected -- for example, when multiple convictions arise out of a single act by the defendant" in which trial court might be required to strike a prior strike, from circumstance where " multiple acts [were] committed in an indivisible course of conduct" ].)[15] Thus, because Bealer's prior strikes arose from distinct criminal acts, the trial court was not required, as a matter of law under Burgos or the Supreme Court case law upon which that case relied, to strike one of the strikes.
Apart from his reliance on Burgos, Bealer's remaining contention is simply that the mitigating factors he cites on appeal were such that the trial court should have been swayed to exercise its discretion to strike one of his strikes.[16]
We are not without sympathy for Bealer's contention. Life imprisonment for the instant offense of second degree robbery is a harsh sentence. We recognize, as well, that given Bealer's relatively undistinguished criminal record, there are plausible arguments that would have supported striking a strike, including that the prior strikes, if not arising from the same act, were closely related (as demonstrated by the concurrent sentences Bealer received in the original case), and that Bealer could have received a 20‑ year sentence even if the court had stricken one of the strikes. (See Burgos, supra, 117 Cal.App.4th at p. 1216.) Nevertheless, these are arguments properly directed at the trial court, not arguments that would warrant a reversal of the trial court's decision by an appellate court, especially in light of the fact that there were other arguments that militated against striking a strike.
As noted above, Bealer's life sentence was mandated by the Three Strikes law and there is a " strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.) In addition, while Bealer's record does not demonstrate that he is the most serious of offenders, it was not beyond the bounds of reason for the trial court to conclude that he is a career criminal -- the exact category of criminals for which the Three Strikes law was designed. (People v. Strong (2001) 87 Cal.App.4th 328, 338 [" longer sentences for career criminals who commit at least one serious or violent felony certainly goes to the heart of the statute's purpose -- or spirit" ].) Between 1999 and 2004, when he was arrested for the instant offense, Bealer has been convicted six separate times in a pattern of escalating criminal behavior. Bealer, who pleaded guilty in the first five cases, resulting in the dismissal of numerous charges, was convicted of an open alcohol container violation in 1999, spousal battery in 2001, robbery with a knife and assault with a deadly weapon in 2003, driving under the influence in 2004, another (unspecified) misdemeanor offense in 2004, and finally the instant offense of robbery in 2004. Bealer has twice committed crimes while on probation, appears to have an unaddressed substance abuse problem, admits to associating with a criminal street gang and exhibited no remorse for his offenses.[17]
Given that there were reasonable arguments of various strengths both in favor and against striking a strike, we cannot conclude that the trial court's refusal to do so was " so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.) Consequently, we are " ' " 'neither authorized nor warranted in substituting [our] judgment for the judgment of the trial judge,' " ' " and must affirm the trial court's ruling where no abuse of discretion is shown " 'even if we might have ruled differently in the first instance.' " (Id. at pp. 377, 378.)
DISPOSITION
Affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
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[1] All statutory references are to the Penal Code unless otherwise specified.
[2] The facts regarding Dale's testimony are taken from the trial transcript, while the facts that follow regarding Deputy Garcia's testimony are drawn from the transcript of the suppression hearing.
[3] To determine whether evidence should be suppressed based on an unlawful search or seizure, " we look exclusively to whether its suppression is required by the United States Constitution," specifically the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 363 (Glaser).)
[4] Bealer does not argue that any of the officers' actions after the stop violated the Fourth Amendment and consequently we address only the legality of the stop itself.
[5] Although unnecessary to our ruling, we note that the actual " seizure," which occurred when Bealer stopped his car in the middle of the street (California v. Hodari D. (1991) 499 U.S. 621, 629 [suspect not seized until he submits to police officer's show of authority]), was supported by the additional circumstances of Bealer's delay in submitting to Deputy Garcia's show of authority; his " odd" decision to stop in the middle of the street; and a choice of route that Deputy Garcia, in light of his 29 years' experience, viewed as unusual for someone whose destination was San Diego -- the car's registered address. (Arvizu, supra, 534 U.S. at p. 276 [totality of the circumstances includes officer's impressions of suspect's conduct in light of officer's experience as well as " specialized training and familiarity with the customs of the area's inhabitants" ].)
[6] Bealer claims that Conway is " factually distinguishable" because the defendants in that case were " stopped in the immediate area of the burglary," and Bealer " was not observed leaving the immediate area [of the robbery]" but was " several blocks" from the gas station when he was observed. We find this distinction unpersuasive for two reasons. First, it is not clear from the Conway opinion that the defendant " leaving the area of the reported burglary" in that case was observed any closer to the crime scene than was Bealer in the instant case. (Conway, supra, 25 Cal.App.4th at p. 390.) Second, even if Bealer was not in the " immediate area" of the robbery at the time he was spotted by Deputy Garcia, Bealer's car, according to the findings of the trial court, was a block and a half away from the gas station and was " the only vehicle on the roadway . . . that runs directly away from the victimized business," permitting a reasonable inference that just moments before, Bealer's car had, in fact, departed the immediate area of the robbery.
[7] The cases Bealer relies on are not analogous because in those cases a crucial factor supporting the instant stop -- the report of a suspect fleeing the commission of a crime -- was absent. (See People v. Roth (1990) 219 Cal.App.3d 211, 215 [" The sole ostensible ground for the detention was [suspect's] early morning presence in the deserted parking lot of a shopping center whose businesses were closed" ]; People v. Verin (1990) 220 Cal.App.3d 551, 558 [detention unlawful where officer stopped two persons leaving an apartment complex in a high crime area].)
[8] As part of his plea, Bealer stipulated that the preliminary hearing transcript in that case contained a factual basis for the plea. The facts described above are taken from that transcript, which is a part of the record on appeal in the instant case.
[9] There was testimony at the preliminary hearing that Bealer also swung the knife at another employee, Hugo Preciado, but Bealer did not plead guilty to doing so, and the count based on this conduct (the third count of the information) was dismissed as part of the plea.
[10] In the instant case, after Bealer waived his right to a jury trial on the existence of his prior convictions, the trial court found Bealer had previously been convicted of robbery and assault with a deadly weapon, and that both of the offenses constituted strikes under the Three Strikes sentencing law.
[11] Five years of the sentence consisted of the five‑ year sentence that was stayed in the previous robbery case.
[12] There is no mention in the probation report of striking a strike, and the record does not reflect that either the prosecutor or Bealer suggested that the court do so.
[13] (Benson, supra, 18 Cal.4th at p. 36, fn. 8; see also People v. Sanchez (2001) 24 Cal.4th 983, 993 [noting " that in this court's decision in Benson, we observed that a trial court may strike a prior felony conviction under section 1385, and that we left open the possibility that 'there are some circumstances in which two prior felony convictions are so closely connected . . . that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors' " ].)
[14] The defendant in Burgos " and two companions approached a man at a gas station and [Burgos] demanded the victim's car while one of the companions told the victim that he had a gun. [Burgos] and his companions were frightened off before they took the victim's car." (Burgos, supra, 117 Cal.App.4th at p. 1212, fn. 3.)
[15] In Burgos, the appellate court also emphasized that " unlike perhaps any other two crimes, there exists an express statutory preclusion on sentencing for both [carjacking and robbery] offenses" (Burgos, supra, 117 Cal.App.4th at p. 1216), a factor that also does not apply here.
[16] Bealer points to a number of factors in support of his contention that the trial court should have exercised its discretion to dismiss a strike: (i) that both of the prior strikes arose from the same incident; (ii) he did not injure anyone in committing either of his prior felony offenses or the instant robbery; (iii) Bealer committed the Wendy's robbery to pay bills and for his kids; (iv) the probation report regarding the Wendy's robbery noted that Bealer reported having been diagnosed with schizophrenia and using marijuana and alcohol at the time of the offense; (v) prior to the Wendy's robbery his criminal history " consisted only of two misdemeanor offenses" and he had never been incarcerated in prison prior to the instant case; and (vi) even if the trial court had struck one of the strikes, he would still have been eligible for a 20‑ year sentence, as opposed to the potential life sentence he received as a third strike offender.
[17] Throughout the proceedings, Bealer blamed everyone but himself for his criminal conduct, acknowledging only that " [s]ometimes, you know, I get caught up in situations where it is hard for me . . . to obey the law all the time."
