P. v. Butler

Filed 8/7/07 P. v. Butler CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Scott C. Taylor and Jeffrey J. Koch, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of possession of a firearm by a felon (count 1 Pen. Code,  12021, subd. (a)(1)),^[1]possession of ammunition by a felon (count 2 ‑‑  12316, subd. (b)(1)), and carrying a loaded firearm, of which he was not the registered owner, on a public street (count 3 ‑‑  12031, subd. (a)(2)(f)). On appeal, defendant contends the trial court erred in denying his motion to suppress the firearm because (1) the discovery of the firearm was a result of defendants illegal detention, and (2) defendant never gave consent to search his car. We find the courts ruling on the motion to suppress supported by substantial evidence and, therefore, affirm the judgment below.

I. FACTS AND PROCEDURAL HISTORY

On September 2, 2005, at 9:00 p.m., Deputy Sheriffs Michael Portillo and Richard Birmingham were separately patrolling the unincorporated area of Riverside County known as Rubidoux. Sheriffs dispatch relayed a 911 call which requested investigation of a suspicious vehicle which had been parked with its lights on for 15 minutes in a residential area on 34th Street. Both officers responded to the call.

According to Deputy Birmingham, he arrived first, noting that the suspect vehicle, a light blue SUV with its lights on, was parked on the north side of the street facing

west. Deputy Birmingham approached the vehicle from the west, head-on, and parked his patrol vehicle directly in front of it. He illuminated the interior of the car with his spotlight. He noticed a female sitting in the front passenger seat and a male sitting in the backseat on the drivers side. Deputy Birmingham exited his vehicle and approached defendants vehicle. He did not have his gun drawn, although he may have had his hand upon its handle while it was in its holster. Deputy Portillo arrived shortly after Deputy Birmingham and parked directly behind defendants vehicle.

Deputy Birmingham asked defendant to step out of the vehicle and go speak with Deputy Portillo. Deputy Birmingham then questioned the female, Jennifer Andrejcik, asking whether she and defendant were having an argument. Ms. Andrejcik responded that she lived in the immediate vicinity and that she and defendant were merely talking. Deputy Birmingham then asked defendant if he had anything illegal in the car. Defendant replied, No, not to my knowledge. Deputy Birmingham asked defendant if he could search the vehicle and defendant responded, Go ahead. Deputy Birmingham found a loaded Smith & Wesson .38-caliber revolver in the center console. He also separately located some ammunition in the car. Deputy Portillo then handcuffed defendant, placing him in custody.

Ms. Andrejcik testified that she and defendant, the father of her children, had just returned from dinner. Defendant had a headache, which is why she was driving his car and why he was laying down in the backseat. They stayed in the car, rather than going inside her home where her family was, because they wished to have a private conversation. While talking, they left the cars motor running and the lights on because they intended the conversation to be of short duration. However, by the time the police arrived they had been there for 15 minutes. They were not arguing or fighting and were simply having a peaceful conversation.

She further testified that Deputy Portillo arrived first. He came from the west, drove slowly past their vehicle, completed a U-turn, and parked behind their car. Deputy Birmingham arrived shortly thereafter and parked in front of their vehicle. Deputy Birmingham illuminated their car with the spotlight and, over the patrol cars loudspeaker, demanded that defendant put his hands up, get out of the car, and walk backward toward Deputy Portillo. Ms. Andrejcik heard defendant get out of the car. Deputy Birmingham then got out of his patrol car and approached her with his gun drawn and pointed toward her. Upon reaching her, he put his gun away and asked her for identification. He then asked her to get out of the car and led her to where defendant and Deputy Portillo were.

Deputy Birmingham then asked defendant if he had anything illegal in the car. Defendant responded, No. Deputy Birmingham then went over to the car and began searching through it. He never asked either she or defendant for permission to search the vehicle. He found a gun in the car. Deputy Portillo then handcuffed defendant and placed him under arrest.

The People charged defendant by information with possession of a firearm by a felon (count 1 ‑‑  12021, subd. (a)(1)), possession of ammunition by a felon (count 2 ‑‑  12316, subd. (b)(1)), and carrying a loaded firearm, of which he was not the registered owner, on a public street (count 3 ‑‑  12031, subd. (a)(2)(f)). The People further alleged defendant had suffered a prior strike conviction ( 667, subds. (c) & (e)(1)(A)) and a prior prison term ( 667.5, subd. (b)). Defendant filed a section 1538.5 motion to suppress the gun on the bases that the initial detention was unlawful, that the detention was unduly prolonged, and that defendant never gave permission to search the vehicle. The People filed opposition thereto; after a lengthy hearing, the court denied the motion. The jury convicted defendant on all counts. Thereafter, defendant admitted the prior strike conviction and prior prison term. The court sentenced defendant to an aggregate term of four years.

II. DISCUSSION

On appeal, defendant contends the trial court erred in denying his motion to suppress on two bases: (1) the initial detention was illegal because it was not supported by a reasonable suspicion that criminal activity may be afoot and, therefore, the subsequent search was unlawful; and (2) Officer Birminghams testimony that defendant gave him permission to search the car was inherently incredible. The People maintain that defendant waived the first contention at the hearing on the motion to suppress and, notwithstanding such waiver, the detention was reasonable and the search, therefore, valid. The People further claim that Officer Birminghams testimony that the search was consensual was credible and supported by substantial evidence. We agree with defendant that the issue of the validity of the detention was not waived below; nonetheless, we find the detention was reasonable. We likewise agree with the People that substantial evidence supported the trial courts determination that Officer Birminghams testimony was credible.

A. Waiver

[I]f defendants have a specific argument other than the lack of a warrant as to why a warrantless search or seizure was unreasonable, they must specify that argument as part of their motion to suppress and give the prosecution an opportunity to offer evidence on the point. [Citation.] For example, defendants who believe the police failed to comply with the knock-notice requirement of Penal Code section 844 cannot simply bring a motion to suppress alleging a warrantless search or seizure and then wait until the appeal to raise the knock-notice issue. Rather, defendants must specify the knock-notice issue in the course of the trial court proceeding. (People v. Williams (1999) 20 Cal.4th 119, 130.) [I]f defendants detect a critical gap in the prosecutions proof or a flaw in its legal analysis, they must object on that basis to admission of the evidence or risk forfeiting the issue on appeal. (Ibid.)

Here, defendant raised the issue of the invalidity of the initial detention in his motion to suppress below. Thus, the People were able to respond to defendants contentions when filing its opposition to the motion. Nonetheless, at the hearing on the motion the following colloquy between counsel and the court occurred:

THE COURT: But to cut to the chase, when you get all said and done, the issue ‑‑ the singular issue, in the Courts determination on this motion, is whether or not consent was given; correct?

[PROSECUTOR]: Right

THE COURT: There is no ‑‑ I dont think, [defense counsel], you would seriously suggest it was unreasonable upon receiving a call of a [suspicious] vehicle for the officers to come and approach and inquire what was going on, or if there was a problem?

[DEFENSE COUNSEL]: No. We have no issue with that.

THE COURT: All right. And so from that point on, the issue then becomes solely whether or not the officers received the consent that they testified they received.

Later, the People responded to a question from the court by asserting, Yes, but of course, at the time I was writing my moving papers, I dont know what point he was going to concede or not, whether or not the initial detention was reasonable.

At this point, the record suggests that both the People and the court were under the distinct impression that defendant had conceded that defendants detention was reasonable and the People no longer bore the burden of proving or arguing otherwise. To ensure everyone was on the same page, the court later stated: I think that [defense counsel] has essentially conceded the fact that it was [reasonable] for them to undertake an investigation at the scene. And whether he concedes it or not, the Court would find that under the circumstances of receiving a suspicious call, arriving at the scene, finding one individual laying down in the [backseat] of a vehicle, the fact that one of the individuals is male and one of the individuals is female, would be sufficient to cause an officer to want to speak or inquire of those individuals. Does anybody disagree with that? To which defense counsel responded, No, we dont. As a result, the People contend that permitting defendant to raise the issue on appeal essentially traps them by limiting the evidence they have to refute defendants contention. In other words, had the People known below that defendant continued to maintain the issue, it would have and could have presented additional evidence and argument on the matter. Furthermore, the court never expressly ruled on the issue of whether the detention was valid.

Nonetheless, we will reach the merits of the issue for two reasons. First, defendants concession essentially took place after the court had already indicated its ruling on the matter. The courts use of language, such as I dont think . . . you would seriously suggest it was unreasonable upon receiving a call of a [suspicious] vehicle for the officers to come and approach and inquire what was going on, or if there was a problem? essentially informed counsel that it would be pointless to pursue the issue. Likewise, when the court stated, And whether he concedes it or not, the Court would find that under the circumstances . . . [it] would be sufficient to cause an officer to want to speak or inquire of those individuals[,] it substantively told counsel the issue had already been lost. Second, the concession occurred after all evidence had already been presented. Both the defendant and the People had already presented all the witnesses, exhibits, and moving papers they intended. Indeed, the concession occurred after defense counsel had presented his final summation argument on the motion. The court, having been unable to previously read the Peoples opposing papers, did so at the hearing and began the above quoted parley thereafter. Thus, the People would not have presented any further evidence on the matter regardless. The only deficit the People can truly now claim, is that based on the oral concession they were deprived of the ability to argue the issue more fully below. The Peoples position has been sufficiently protected. Therefore, the issue of the reasonableness of the detention is properly before us.

B. Defendants Detention Was Reasonable

At a section 1538.5 motion, the trial court judges the credibility of witnesses, resolves conflicts in the testimony, weighs the evidence, and draws those factual inferences that he or she may be called upon to make. On appeal, all presumptions are in favor of the trial courts findings, express or implied, and must be upheld if supported by substantial evidence. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) However, because the reasonableness of a search within the confines of the Constitution is a question of law, we measure the facts, as found by the trier, against the constitutional standard of reasonableness. [Citation.] On that issue, . . . the appellate court exercises its independent judgment. (Id. at p. 597; see Ornelas v. United States (1996) 517 U.S. 690, 699 [116 S.Ct. 1657, 134 L.Ed.2d 911] [de novo review of determinations of reasonable suspicion and probable cause].)

[T]o justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that . . . some activity relating to crime has taken place or is occurring or about to occur . . . . Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation omitted], to suspect the same criminal activity . . . . (People v. Teresinski (1982) 30 Cal.3d 822, 829, quoting In re Tony C. (1978) 21 Cal.3d 888, 893.)

Defendant breaks the issue into two components: (1) was there a detention, and (2) was the detention unreasonable. He cites to a number of cases for the proposition that the officers boxing in of his vehicle by their patrol cars constituted a detention. (People v. Wilkins (1986) 186 Cal.App.3d 804, 809; People v. Bailey (1985) 176 Cal.App.3d 402, 404-405; United States v. Kerr (9th Cir. 1987) 817 F.2d 1384, 1386-1387; People v. Perez (1989) 211 Cal.App.3d 1492, 1496.)

We believe the first component is not in issue. First, no evidence was adduced below that defendants car was boxed in so that it could not be driven away. Ms. Andrejciks declaration, attached to defendants motion to suppress, fails to indicate where the first patrol car stopped, nor does she address how close the second patrol car parked in front of defendants vehicle. While Deputy Birmingham testified he parked in front of defendants vehicle, nothing in his testimony could reasonably be construed as suggesting it was close enough to prevent defendant from driving off. Ms. Andrejcik testified that Deputy Portillo parked behind defendants car, while Deputy Birmingham parked in front; however, at no time did she indicate how close either of the patrol vehicles were to defendants car nor that she could not have driven off if she had so wanted. The closest suggestion that defendant was boxed in was Deputy Birminghams affirmative response to the prosecutions question: The defendants vehicle then is sandwiched in between the two of your vehicles, if I understand you correctly? However, Merriam-Websters online dictionary defines sandwich as: 1: to make into or as if into a sandwich; especially: to insert or enclose between usually two things of another quality or character. [] 2: to make a place for -- often used with in or between (http://www.m-w.com/dictionary/sandwiched). Thus, something that is sandwiched is not necessarily incapable of egress between the things within which it is sandwiched. Therefore, this case is distinguishable from those cited by defendant wherein definitive evidence established that those defendants could not drive off. (People v. Wilkins, supra, 186 Cal.App.3d at p. 809; People v. Bailey, supra, 176 Cal.App.3d at pp. 404-405; United States v. Kerr, supra, 817 F.2d at pp. 1386-1387; People v. Perez, supra, 211 Cal.App.3d at p. 1496.)

Second, and most importantly, the People conceded below that defendant was detained by the officers. Indeed, in the Peoples papers in opposition to defendants motion it stated: Deputy Birmingham and Deputy Portill[o] acted reasonably in briefly detaining the defendant and his girlfriend to ascertain why they were parked on the side of the road for fifteen minutes. Once they were detained, the Fourth Amendment does not preclude the deputies from seeking consent to search the vehicle. (Italics added.) Likewise, the People on appeal argue solely that the detention was reasonable, not that there was no detention. Thus, the sole issue left with regard to the detention is whether it was reasonable. We believe that it was.

Here, both deputies responded to a dispatch call regarding a suspicious vehicle that had been sitting on the street for 15 minutes with its lights on and its motor running. Obviously, by virtue of his call, the caller subjectively believed the circumstances were suspicious. Moreover, the caller would be in a superior position to know what was suspicious behavior in that particular area since he, inferentially, lived there. Ms. Andrejcik confirmed that she and defendant had been in the car with the lights on and the motor running for at least 15 minutes when the officers arrived. It was approximately 9:30 at night. One of the cars occupants sat in the front, while the other was laying down in the back. The occupants of the car included one male and one female. Deputy Birmingham, concerned that he might have a situation involving domestic violence, separated the two individuals so that he could question Ms. Andrejcik. The duration of the entire incident, from Deputy Birminghams arrival on the scene to defendants arrest, took approximately three minutes.

We believe these circumstances were sufficiently suspicious to justify a detention of short duration in order for the officers to investigate what was occurring. Indeed, as noted above, the trial court likewise implicitly found so: [T]he Court would find that under the circumstances of receiving a suspicious call, arriving at the scene, finding one individual laying down in the [backseat] of a vehicle, the fact that one of the individuals is male and one of the individuals is female, would be sufficient to cause an officer to want to speak or inquire of those individuals. Most people simply do not sit in a car at night with the motor running, the lights on, with one person in the front seat and one in the back for 15 minutes. Here, the situation could be reasonably suggestive of a myriad of potential criminal behaviors, including drug dealing, gang activity, and/or what the officers and the trial court recognized as possible indications of domestic abuse. Thus, there was substantial evidence of a reasonable, articulable suspicion of potentially criminal behavior such that the initial detention was justified.

Defendant suggests that once Deputy Birmingham made contact with Ms. Andrejcik, discovered she lived in the immediate area, and discerned no indications of a struggle between she and defendant, the detention was no longer warranted. We disagree. There is no set time limit for a detention; the determination of whether a detention was unduly prolonged is based upon whether the officers acted diligently in the reasonable investigation of their suspicions. (United States v. Sharpe (1985) 470 U.S. 675, 685-686 [105 S.Ct. 1568, 84 L.Ed.2d 605].)

As both Deputy Birmingham and the trial court noted, police encounter situations involving domestic abuse on a daily basis in which the victim initially indicates that everything is fine. Only when removed from the situation, by separating the victim from the abuser, do these individuals eventually reveal the truth of the circumstances. Moreover, not all marks of domestic abuse would necessarily be on an area of the victims body which would be immediately noticeable by the officer. From beginning to end, the detention lasted only around three minutes. Thus, the deputies acted reasonably and diligently in asking defendant to alight from the car for a brief investigation into the circumstances surrounding the situation.

Likewise, defendants suggestion that Deputy Birminghams testimony that the entire incident lasted less than three minutes was inherently incredible is unavailing. First, it appears entirely plausible from Deputy Birminghams narrative of the events that they occurred within this time frame. This is particularly true as the dispatch records which recorded the times of the various individual steps of the investigation, from Deputy Birminghams arrival to the arrest of defendant, corroborate his testimony. Additionally, Ms. Andrejciks testimony nowhere conflicts with Deputy Birminghams regarding the time frame of the events. Indeed, it would appear reasonable to conclude from her testimony alone that the events took a total of approximately three minutes. Finally, whether Deputy Birminghams testimony was credible is a determination which is properly made by the trial court. We do not reweigh such determinations.(People v. Leyba, supra, 29 Cal.3d at pp. 596-597.) Here, the trial court found Deputy Birminghams testimony credible and substantial evidence supports that determination.

C. Substantial Evidence Supports the Trial Courts Determination That Defendant Consented to the Search of His Vehicle

Defendant appears to want it both ways. At first, he argues any consent defendant gave Deputy Birmingham to search his car was coerced, but then later argues that defendant was never asked to, and did not consent to, the search at all. As defendant himself acknowledges, the case revolves around the credibility of [Deputy] Birmingham. The credibility of testifying witnesses is a determination which is properly made by the trial court. We do not reweigh such determinations. (People v. Leyba, supra, 29 Cal.3d at pp. 596-597.) Here, the trial court determined that defendant had validly consented to the search of his vehicle by Deputy Birmingham and substantial evidence supports that determination.

Deputy Birmingham testified that while he may have initially had his hand on the butt of his service weapon when approaching Ms. Andrejcik, he never removed his weapon from its holster. Although Ms. Andrejcik testified to the contrary, it was properly within the trial courts powers to find Deputy Birminghams testimony the more credible. Moreover, simply because the trial court noted the credibility issue was a close call, does not entitle this court to substitute its own belief. Only where the testimony is inherently incredible would this court be entitled to do so. (People v. Headlee (1941) 18 Cal.2d 266, 267-268.) This we cannot find. Even if Deputy Birmingham had removed his weapon and aimed it at Ms. Andrejcik, as she testified, it was defendant, not Ms. Andrejcik, whom he asked for consent to search the car. Ms. Andrejcik never testified that Deputy Birmingham aimed his weapon at defendant; thus, defendant was never under the compulsion of having a weapon aimed at him when he was asked for permission to search the vehicle. Furthermore, Ms. Andrejcik testified that Deputy Birmingham holstered his weapon upon initiating discussion with her. Thus, when he later requested defendants permission to search the vehicle, his weapon was not out. Therefore, because, under either Deputy Birminghams or Ms. Andrejciks testimonies, defendant was never subject to having the deputys weapon pointed at him and the weapon was not in the deputys hand when defendant was asked to consent to a search of his car, the consent was not coerced. (People v. Challoner (1982) 136 Cal.App.3d 779, 782 [consent coerced when given contemporaneous to officers draw of weapon].)

Finally, we do not find Deputy Birminghams testimony that he asked for and was granted defendants permission to search the car inherently incredible or improbable. Here, Deputy Birminghams testimony on both direct and cross-examination regarding the circumstances under which he received defendants permission to search the car was internally consistent. He testified he asked defendant if he had anything illegal in the car. Defendant replied, No, not to my knowledge. He then asked defendant if he could search the vehicle, to which defendant replied, Go ahead. Ms. Andrejcik also testified that Deputy Birmingham asked defendant whether he had anything illegal in the car. She testified that she was five to six feet away from the officer when he asked this of defendant; thus, it is entirely possible that she simply did not hear Deputy Birmingham ask for defendants assent to a search of the car. Again, notwithstanding Ms. Andrejciks testimony that Deputy Birmingham categorically did not request or receive defendants consent to search the vehicle, the court obviously resolved the inconsistency in favor of the latters testimony. This determination was properly within its province. Moreover, the court did acknowledge Ms. Andrejciks possible bias in favor of defendant in noting that she had been involved in a relationship with him for 14 years and that he was the father of her children. Thus, substantial evidence supports the trial courts determination that Deputy Birminghams testimony that defendant consented to a search of the vehicle was credible.

III. DISPOSTION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Richli

Acting P.J.

/s/ Gaut

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.