P. v. Chicchio

Filed 4/14/06 P. v. Chicchio CA2/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Andrew C. Kauffman, Judge. Affirmed.

C. Elliot Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Bill Bochicchio appeals from the judgment entered following his conviction by jury of first degree residential burglary (Pen. Code, § 459) with court findings that he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)), and a prior serious felony conviction (Pen. Code, § 667, subd. (a)), following the denial of a suppression motion (Pen. Code, § 1538.5).[1] He was resentenced to prison for 17 years for the present offense, plus eight months on an unrelated case.[2]

In this case, we hold police lawfully detained appellant; therefore, the trial court properly denied appellant's suppression motion. A police officer saw appellant riding a bicycle in the daytime, awkwardly carrying a black case and a duffel bag filled with items; these facts permitted the inference appellant had only recently obtained what he was carrying. There had been numerous daytime residential burglaries in the area, and the officer had investigated many residential burglaries in which the burglars carried the loot in a duffel bag or pillow case, frequently one belonging to the victim. Appellant illegally rode the bicycle the wrong way on a one-way street, and appeared to be wandering until he saw a construction site. Shortly thereafter, he stopped, entered the site, and went to its top floor. The officer knew that tools were frequently stolen during construction site burglaries and sold at other construction sites, the officer thought the black case might contain such tools, and these facts permitted the inference appellant had been looking for an opportunity to sell what he was carrying. The officer caused appellant to come downstairs, appellant came downstairs without the black case, and police later searched the duffel bag, black case, and appellant's pockets.

In these circumstances, we assume police detained appellant when he began to come downstairs. However, based on the totality of the circumstances, as summarized above, we conclude police had an objectively reasonable basis to detain appellant and his detention was lawful. There is no need to decide whether appellant had privacy interests in the duffel bag, black case, or his pockets since, inter alia, there is no dispute he consented to their search except to the extent he claims such consent was the product of an unlawful detention, and we have rejected that claim. Similarly, we reject appellant's claim that police unlawfully detained him and, for that reason, the search could not be justified as a search incident to a lawful arrest.

We also hold the trial court did not err by imposing, pursuant to the Three Strikes law, mandatory consecutive resentences for the present offense and a prior offense for which he was already serving a prison term. In Bochicchio I (see fn. 2, ante), we accepted respondent's concession that the trial court erroneously believed at initial sentencing that the court lacked discretion to impose concurrent sentences; accordingly, we vacated appellant's sentence and remanded for resentencing. However, we should not have accepted that concession in Bochicchio I. Although respondent's concession was offered in good faith, it was based on the erroneous assumption that, at the time of initial sentencing for the prior offense and the present offense, appellant was, in the prior case, merely on probation. In fact, the court previously had sentenced appellant to prison for his probation violation in the prior case; therefore, section 667, subdivision (c)(8) mandated consecutive sentencing. At resentencing, the trial court noted appellant was already serving a prison term in the prior case and merely reinstated the previous judgment, which properly had imposed mandatory consecutive sentences.

Finally, we hold imposition of the upper term for the present offense did not violate appellant's Sixth Amendment right to a jury trial or Fourteenth Amendment right to due process.

FACTUAL SUMMARY

A detailed recitation of the facts of the present offense is not necessary to resolve this appeal. Suffice it to say that the evidence, the sufficiency of which is undisputed, established that on May 29, 2002, appellant committed first degree residential burglary in Hermosa Beach.[3]

CONTENTIONS

Appellant contends (1) the trial court erroneously denied his suppression motion because officers lacked reasonable suspicion to support his detention for burglary, (2) the trial court erred by failing to rule on whether his sentences in a prior case and in the present case should be served concurrently or consecutively, and (3) the court violated appellant's right to a jury trial and right to due process when it imposed the upper term for the present offense.

DISCUSSION

1. The Trial Court Properly Denied Appellant's Suppression Motion.

a. Pertinent Facts.

(1) People's Evidence.

Viewed in accordance with the usual rules on appeal (People v. Leyba (1981) 29 Cal.3d 591, 596-597), the evidence established as follows. About a week to two weeks before May 29, 2002, nine or ten daylight residential burglaries had occurred in the south end of Hermosa Beach. During the afternoon of May 29, 2002, Hermosa Beach Police Officer Brian Smyth was part of a surveillance team. Smyth was driving around the south end of Hermosa Beach in an unmarked pickup truck. Smyth was looking for suspicious activity and suspicious persons. Smyth was maintaining radio contact with other members of the surveillance team.

Smyth had been driving around for about 45 minutes to an hour when, about 3:00 p.m., appellant drew Smyth's attention. Appellant had a large duffel bag slung over his shoulder. The duffel bag appeared to be loaded with items. Appellant was carrying in his left hand a â€