P. v. Flores-Contreras

Filed 10/30/06 P. v. Flores-Contreras CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Rodolfo Javier Flores-Contreras’s probation was revoked and he was sentenced to a two-year state prison term after the trial court found that he possessed a burglary tool with the intent to feloniously break or enter a building or vehicle (Pen. Code,[1] § 466) and falsely identified himself to a police officer (§ 148.9). On appeal, defendant contends that there was insufficient evidence to support the revocation of his probation for either alleged violation. We disagree, and affirm the judgment.

I. BACKGROUND

On February 25, 2005, pursuant to a negotiated disposition, defendant pleaded guilty to auto theft (Veh. Code, § 10851, subd. (a)) with Harvey[2] and Blakely-Apprendi[3] waivers in return for the dismissal of two other counts. On April 8, 2005, imposition of sentence was suspended and defendant was placed on three years’ probation. Defendant was further ordered to serve four months in county jail.

A. Probation Revocation Proceedings

A petition for revocation of probation was filed on October 4, 2005, alleging that on September 17, 2005, defendant possessed a picklock or master key in violation of section 466 and falsely identified himself to a peace officer in violation of section 148.9, subdivision (a). Defendant denied the allegations.

At the probation revocation hearing, San Rafael Police Officer Roy Leon testified that on September 17, 2005, about 11:20 p.m., he was on patrol in his marked police car in the “Canal area” of San Rafael, an area known for frequent auto thefts and auto burglaries. He noticed defendant walking on the sidewalk fronting 124 Belvedere Street. He parked his car so as not to block defendant’s path, walked up to defendant, and asked him in Spanish if he could talk to him for a second. Defendant, speaking in Spanish, agreed.

Officer Leon noticed that defendant was “acting a little nervous.” He told Leon that he had just come from his house which was around the corner, but he could not provide the address or location of the house. Defendant told Leon that he “wasn’t doing anything wrong” and that he “didn’t have anything.” He told the officer that he could search him if he wanted to.

Leon said he would search defendant as soon as a cover officer arrived, which took about three minutes. As Leon began searching him, defendant volunteered that he had a piece of metal in his pants packet. Leon described the metal piece as about six inches long, shaved, very thin, and pointed at one end and wide at the other end. The piece looked like it had been fashioned from a reciprocating saw blade. When Leon asked defendant what the object was, defendant responded that he had been told it was a tool used for breaking into cars.[4] Defendant explained that he had been in the parking lot of a nearby market with four males he could not identify. One of them had the metal piece and told defendant it was a tool for breaking into cars. When this male dropped the tool on the ground, defendant retrieved it and put it in his pocket.

Based on Leon’s police training and experience, he recognized the tool as one used to slip into locks in order to break into autos or homes. He tried the tool on the lock of his patrol car. It slid in to the lock easily but he could not get it to unlock the car.

Leon asked defendant for his name and date of birth. He identified himself as Javier Carrera Flores, born January 4, 1976. A records check showed no match for that name and birth date. At that point, Leon placed defendant in custody. Defendant later admitted that he lied about his name and provided his true name and birth date to Leon.

B. Revocation, Sentence, and Appeal

The trial court found that defendant had willfully violated the terms of his probation by violating both sections 466 and 148.9. It revoked defendant’s probation and sentenced him to the middle term of two years in state prison. This appeal followed.

II. DISCUSSION

Defendant contends that the trial court abused its discretion in revoking his probation because insufficient evidence supported the trial court’s findings that he violated either section 466 or section 148.9.

The standard of proof for a probation violation is preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441, 447.) In reviewing a probation violation finding for sufficiency of the evidence, we: (1) view the evidence in the light most favorable to the prosecution; (2) presume in support of the judgment the existence of every fact the trial court could reasonably deduce from the evidence, even if the evidence might in our opinion also be reconciled with a contrary finding; and (3) determine whether any rational trier of fact could have found the essential elements of the crime by a preponderance of the evidence. (See People v. Catlin (2001) 26 Cal.4th 81, 139 & cases cited therein.)

A. Section 466

Section 466 provides in relevant part as follows: “Every person having upon him or her in his or her possession a picklock . . . or other instrument or tool with intent feloniously to break or enter into any building . . . or vehicle . . . is guilty of a misdemeanor.”

Defendant bases his argument that the evidence was insufficient to show a violation of section 466 on several factors: According to Officer Leon, defendant was not engaging in any suspicious or criminal activity when the officer first noticed him. When contacted, defendant freely consented to the search of his person and even volunteered to the officer that he possessed a piece of metal that he had been told could used to open car doors. Defendant also notes that there was no evidence that the metal piece found on him was, in fact, a working picklock since the officer was unable to open his car with it.

We are not persuaded. That defendant was not engaged in any obvious criminal activity at the precise moment when Officer Leon came across him does not exculpate him from the crime of possessing a burglary tool with the intent to use it. The fact that he submitted to the search voluntarily and called the officer’s attention to the burglary tool may have simply stemmed from his recognition that, as a probationer, little purpose would be served by trying to resist a search or hide evidence that was sure to be discovered. Officer Leon’s testimony that he recognized the metal piece as an improvised burglary tool based on his training and experience does in fact constitute sufficient evidence to support the court’s finding that defendant was in possession of a burglary tool. The fact that Leon could not open the door of his patrol vehicle with the tool proves little, since there is no reason to expect that he had the same skill in using the tool that an experienced auto burglar would have. In sum, the various factors cited by defendant do little to offset the evidence and inferences that weigh in support of the court’s findings.

That evidence included the following: Defendant was found walking by himself late at night in a high-crime area where there had been many recent auto thefts and burglaries. He was nervous when Leon contacted him, and lied to the officer by claiming to live around the corner when he could not even provide the address or specific location of his residence. He possessed a piece of metal that had been fashioned into a type of tool that Officer Leon recognized from his training and experience as an auto and home burglary tool. In its modified condition, the tool had no other apparent use. Defendant’s explanation for how the tool came to be in his possession was rather implausible. He could not name any of the persons he was with when the tool was supposedly dropped on the ground and he picked it up. But even if taken at face value, his account constitutes an admission that he picked the tool up and retained it after being told that it was used for breaking into cars. The tool readily fit into the lock of Leon’s patrol vehicle. Although Leon was unable to open the lock with it, he may not have known how to use it correctly. Finally, defendant gave a false name and birth date.

Viewing this evidence in the light most favorable to the prosecution, and drawing every inference in support of the judgment that the trial court could have reasonably deduced from the evidence, a rational trier of fact could have found by a preponderance of the evidence that defendant was in possession of a burglary tool and that he had the intent to use it feloniously to break or enter a building or vehicle.

B. Section 148.9

Section 148.9, subdivision (a) provides in relevant part as follows: “Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer . . . , upon a lawful detention or arrest of the person, . . . to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.”

Defendant contends that at the time he gave a false name and date of birth he was not lawfully detained or arrested. He argues that he was not detained since the court found that the contact between Officer Leon and defendant was consensual. Although the court did make a finding that the contact was consensual, that finding pertained to defendant’s position at the revocation hearing that what began as a “consensual encounter” became an unlawful detention when defendant overheard Leon calling for a backup officer.[5] Defendant sought to suppress the evidence against him, including the burglary tool, as the fruit of that assertedly unlawful detention. The issue of whether the encounter was still consensual after Leon found a burglary tool in defendant’s possession was not before the court, because defendant made no attempt to argue that his continued detention after that point was unsupported by a reasonable suspicion of criminal activity. Thus, the court’s finding that the events leading up to the search constituted a consensual encounter is in no way inconsistent with its implied finding that he was under lawful detention when he later gave the officer a false name.

In any event, as discussed earlier, the evidence obtained and testified to by Officer Leon was sufficient to establish a violation of section 466 by a preponderance of the evidence. It was therefore also sufficient to establish the lesser requirement of probable cause to arrest him on September 17, 2005. Defendant’s giving of false identification upon his lawful detention and arrest therefore satisfied the requirements for a violation of section 148.9.

Defendant argues that section 148.9 nonetheless did not apply because he later provided Officer Leon with his true name and birth date, before being cited and released from custody. Since section 148.9 was originally enacted to penalize arrestees who were giving false names in order to skip bail, defendant contends that it should have no application to him. (See In re Voeurn O. (1995) 35 Cal.App.4th 793, 797, discussing the legislative history of the statute.) However, as the discussion in In re Voeurn O. makes clear, section 148.9 is to be construed literally to apply “upon a lawful detention or arrest.” (Id. at p. 796; § 148.9.) Events occurring after a violation of section 148.9 do not provide an excuse or defense for its violation.

The trial court did not abuse its discretion in revoking defendant’s probation. The court’s finding that defendant willfully violated the terms of his probation by violating both sections 466 and 148.9 is supported by the evidence. We therefore do not reach his alternative contention that the matter should be returned to the trial court for reconsideration if this court upholds only one of the two violation findings.

III. DISPOSITION

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

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Marchiano, P.J.

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Swager, J.

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

[2] People v. Harvey (1979) 25 Cal.3d 754.

[3] Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466.

[4] Defendant objected to and moved to strike Leon’s double hearsay testimony concerning what defendant told him he had been told by a third person about the object. The trial court stated that it would accept the testimony “for the permissible state of mind reason but not for ultimate proof of what [the metal object] is.”

[5] According to his police report, Leon called for backup when he was standing with defendant.