P. v. Le

 

 

 

 

 

 

 

 

 

Filed 11/14/13  P. v. Le CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Placer)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   BI LE,                           Defendant and Appellant.

C072751   (Super. Ct. No. 62108365)

 

 

            name="_BA_ScanRange">Defendant Bi Le was arrested and searched subsequent to
the arrest.  The arresting officer found
methamphetamine in his pocket, and defendant pled no contest to possession of
methamphetamine after the magistrate denied his href="http://www.fearnotlaw.com/">motion
to suppress the evidence found on him on the ground
that the officer lacked probable cause to arrest him.  On appeal, he contends the trial court erred
in denying his motion.  He also contends
that the amount of his restitution fine violated the constitutional prohibition
against ex post facto laws.  We
disagree and affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

            Scott Miller met with a man by the
name of “Kevin” (whose real name was Thang Nguyen) on July 4, 2011, to purchase a discounted airline voucher
after he saw the voucher advertised on craigslist.  Prior to the meeting, Miller went online to
confirm the voucher was valid.  Miller
then met with “Kevin” in a grocery store parking lot and paid cash for the
voucher.  Miller indicated that he was
interested in other vouchers. 

            “Kevin” texted Miller to tell him he
had another voucher to sell.  A second
meeting was set for July 5, during which Miller was going to purchase the other
voucher.  After scheduling the July 5
meeting but before the meeting took place, Miller was contacted by the airline
and told the first voucher was invalid.  Miller
called the police to inform them of the invalid voucher and also told them of
the scheduled meeting to purchase the second voucher.  

            When Miller contacted the police, he
described “Kevin” as “[a]n Asian male who gave the first name of Kevin only,
wearing glasses, a little heavyset.”  “Kevin”
was with a second man Miller described as skinny and Asian.  The second man was driving a red
convertible. 

            Officers met in a parking lot on
July 5 to watch “Kevin” and the second man.  Miller waited in an unmarked car with a detective.  While in the parking lot, an officer saw two
men who matched the description Miller gave of the two men; they were in a
silver truck.  Miller identified one of
the men as “Kevin,” the seller from July 4.  Miller said the man with “Kevin” had essentially
the same hairstyle and physical make up as the second man from July 4; this man
was defendant.  The magistrate found that
defendant had similar characteristics to the driver from July 4. 

            Officers watched two phone calls
between Miller and “Kevin” while defendant was with “Kevin”.  After the second phone call, the officers
decided to move in to arrest the two because defendant and “Kevin” seemed
agitated that Miller had not arrived. 
Before the officers approached defendant and “Kevin,” defendant had already
started to walk away.  When defendant saw
the officers get to “Kevin,” defendant started walking away at a very fast
walk.  An officer caught up with
defendant and placed him under arrest. 

            Detective James Hudson of the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Placer County Sheriff’s
Department arrested defendant for the sale of fraudulent airline tickets.  After arresting defendant, Detective Hudson
searched him and felt an object in the pocket of his shorts.  Detective Hudson asked defendant if the item was marijuana
and defendant responded that it was “dope.” 
The item from defendant’s pocket turned out to be methamphetamine.

            Defendant filed a href="http://www.mcmillanlaw.com/">motion
to suppress the evidence taken from him.  The court (sitting as a magistrate) found that
there was probable cause for the arrest and denied the motion.  Defendant then pled no contest to possession
of methamphetamine.  The court ordered
defendant to pay a $240 restitution fine.  Defendant did not object to the fine. 

DISCUSSION

I

There
Was Probable Cause To Arrest Defendant

            On appeal, defendant argues the magistrate
erred in denying the motion to suppress. 
According to defendant, “[t]he officer lacked probable cause to arrest [him],
and thus any evidence discovered as a result of that arrest should have been
suppressed as fruit of the poisonous tree.” 
We disagree.

            In ruling on a suppression motion,
“the trial court (1) finds the historical facts, (2) selects the applicable
rule of law, and (3) applies the latter to the former to determine whether the
rule of law as applied to the established facts is or is not violated.
. . .  [¶]  The court’s resolution of the first inquiry,
which involves questions of fact, is reviewed under the deferential
substantial-evidence standard. 
[Citations.]  Its decision on the
second, which is a pure question of law, is scrutinized under the standard of
independent review.  [Citations.]  Finally, its ruling on the third, which is a
mixed fact-law question that is however predominantly one of law, viz., the
reasonableness of the challenged police conduct, is also subject to independent
review.  [Citations.]  The reason is plain:  â€˜it is “the ultimate responsibility of the
appellate court to measure the facts, as found by the trier, against the
constitutional standard of reasonableness.” â€™ â€  ( ADDIN BA xc <@cs> xl 46 s
JYKOVX000001 xhfl Rep xpl 1 l ">People v. Williams(1988) 45 Cal.3d 1268" People
v. Williams (1988) 45 Cal.3d 1268, 1301.)

            Warrantless searches are
presumptively unreasonable absent an exception. 
(
ADDIN BA xc <@cs> xl 72 s JYKOVX000002 xhfl Rep xpl 1 l "United States v.
Karo(1984) 468 U.S. 705 [82
L.Ed.2d 530]" United
States v. Karo (1984) 468 U.S. 705, 717 [82 L.Ed.2d 530, 542-543].)  A search incident to a valid arrest is an
exception to the requirement for a search warrant.  ( ADDIN BA xc <@cs> xl 68 s
JYKOVX000003 xhfl Rep xpl 1 l ">United States v. Jeffers(1951) 342 U.S. 48 [96 L.Ed. 59]" United
States v. Jeffers (1951) 342 U.S. 48, 51-52 [96 L.Ed. 59, 64].)  An arrest without a warrant is valid if it is
supported by probable cause.  ( ADDIN BA xc <@cs> xl 70 s
JYKOVX000004 xhfl Rep xpl 1 l ">United States v. Watson(1976) 423 U.S. 411 [46 L.Ed.2d 598]" United
States v. Watson (1976) 423 U.S. 411, 417 [46 L.Ed.2d 598, 605].)  “Cause to arrest exists when the facts known
to the arresting officer would lead a person of ordinary care and prudence to
entertain an honest and strong suspicion that the person arrested is guilty of
a crime.”  ( ADDIN BA xc <@cs> xl 41 s
JYKOVX000005 xhfl Rep xpl 1 l "People v.
Price(1991) 1 Cal.4th 324" People v. Price (1991)
1 Cal.4th 324, 410.)  “The
probable-cause standard is incapable of precise definition or quantification
into percentages because it deals with probabilities and depends on the
totality of the circumstances.”  ( ADDIN BA xc <@cs> xl 67 s
JYKOVX000006 xhfl Rep xpl 1 l ">Maryland v. Pringle(2003) 540 U.S. 366 [157 L.Ed.2d 769]" Maryland
v. Pringle (2003) 540 U.S. 366, 371 [157 L.Ed.2d 769, 775].)  “Each case must be decided on its individual
facts, but it is at least clear that the arresting officers must possess more
than a mere hunch.  They must be able to
point to specific and articulable facts which warranted their suspicion that an
offense had been committed and that defendant committed it.”  ( ADDIN BA xc <@cs> xl 46 s
JYKOVX000007 xhfl Rep xpl 1 l ">People v. Hernandez(1988) 47 Cal. 3d 315" People
v. Hernandez (1988) 47 Cal.3d 315, 341.)

            Defendant contends that “[e]ven if
the officers assumed that [defendant] was the same person who had accompanied [“Kevin”]
to meet with Miller on the preceding day, they had no evidence at that point
amounting to probable cause to arrest [defendant] for a crime.”  We disagree. 
The People argue that, based on the facts, “a man of ordinary care and
prudence could believe or entertain a strong suspicion that [defendant] had

 

 

committed a crime
due to his involvement with [“Kevin”] in selling the fraudulent voucher.  [Citation.] 
As such, the trial court appropriately found that the officers had
probable cause to arrest [defendant]. 
Because the search of his person was incident to a lawful arrest, it too
was lawful.”  We agree with the People
and find the search of defendant to have been incident to a lawful arrest.  Thus, the magistrate did not err in denying
the motion to suppress. 

            Defendant claims that his “ ‘brisk
walk’ from detectives cannot justify his arrest.”  Defendant relies on  ADDIN
BA xc <@cs> xl 67 s JYKOVX000008 xhfl Rep l "Illinois v.
Wardlow(2000) 528 U.S. 119 [145
L.Ed.2d 570]" Illinois
v. Wardlow (2000) 528 U.S. 119 [145 L.Ed.2d 570]  ADDIN
BA xc <@$cs> xl 7 s JYKOVX000008 xpl 1 to support his argument that flight alone
cannot justify probable cause.  His
reliance on  ADDIN BA xc <@$cs> xl 7 s
JYKOVX000008 Wardlow
is misplaced.  In  ADDIN
BA xc <@$cs> xl 7 s JYKOVX000008 Wardlow,
flight alone was not enough to justify probable cause for arrest.  ( ADDIN BA xc <@$cs> xl 39 s
JYKOVX000008 xhfl Rep xpl 1 Id. at pp. 123-124
[145 L.Ed.2d at pp. 575-576].)  Here,
there was more than just flight.  Defendant
not only employed a brisk walk to get away from the officer, but defendant was
also seen with “Kevin” during the time prior to the arrest and was identified
by Miller as someone with similar characteristics to the driver from the
previous day.

            Defendant argues that presence at
the scene of a crime is not, by itself, enough for probable cause and relies on
two cases.  Here, however, the officer
relied on more than his mere presence.  In both of the cases defendant cites, officers
had only the fact that the defendant was in the presence of someone smoking
marijuana or was in a car from which the officer could smell marijuana.  ( ADDIN BA xc <@cs> xl 48 s
JYKOVX000009 xhfl Rep xpl 1 l ">In re Antonio B.(2008)
166 Cal.App.4th 435" In re Antonio B.
(2008) 166 Cal.App.4th 435 ADDIN BA xc <@$cs> xl 9 s
JYKOVX000009 xpl 2 ;  ADDIN
BA xc <@cs> xl 51 s JYKOVX000010 xhfl Rep xpl 1 l "People v.
Collier(2008) 166 Cal.App.4th 1374"
People
v. Collier (2008) 166 Cal.App.4th 1374 ADDIN BA xc <@$cs> xl 7 s
JYKOVX000010 xpl 2 .) 
Accordingly, in those cases, officers did not have probable cause for an
arrest, but in both cases officers had much less information than the officers
did here.  (See In re  ADDIN
BA xc <@$cs> xl 44 s JYKOVX000009 xhfl Rep xpl 1 Antonio
B., at p. 441;  ADDIN
BA xc <@$cs> xl 42 s JYKOVX000010 xhfl Rep xpl 1 Collier,
at p. 1377.)  Here, the magistrate
found that defendant had similar characteristics to the driver on July 4.  As such, defendant was at least helping “Kevin”
get to the place where the fraudulent voucher would be sold.  Thus, based on the totality of the
circumstances, an officer of ordinary care and prudence could have reasonably believed
or had a strong suspicion that defendant had committed or was committing a
crime.  Thus, the arresting officer had
probable cause to arrest defendant and the magistrate did not err in denying
defendant’s motion.

II

Defendant
Forfeited His Argument Against The Restitution Fine

             ADDIN
BA xc <@st> xl 25 s JYKOVX000011 l "Penal Code section 1202.4" Penal Code section 1202.4 requires the court
to impose a restitution fine.  ( ADDIN BA xc <@st> xl 30 s
JYKOVX000012 xpl 1 l "Pen. Code, § 1202.4, subd.
(b)" Pen. Code, § 1202.4, subd. (b).)  Effective January 1, 2012, the minimum amount
of restitution fine for a felony increased from $200 to $240.  ( ADDIN BA xc <@st> xl 39 s
JYKOVX000013 xpl 1 l "Pen. Code, § 1202.4,
subdivision (b)(1)" Pen. Code, § 1202.4, subd. (b)(1), as amended by Stats.
2011,  ADDIN BA xc <@osdv> xl 12 s
JYKOVX000017 xpl 1 l "ch. 358, § 1"
ch. 358, § 1.)  Defendant’s offense occurred on July 5, 2011,
when the minimum fine was $200, but the trial court imposed a $240 restitution
fine. 

            Defendant argues that the “imposition
of the increased amount of $240 violates the prohibition against href="http://www.fearnotlaw.com/">ex
post facto laws under both the federal and state [C]onstitutions
because [his] offense was committed prior to the effective date of the amended
statute and the fine constitutes punishment.” 
The People argue that “[defendant] has forfeited this issue.  It is well-established that a defendant may
not contest the amount of a restitution fine for the first time on
appeal.”  The People are correct.  Defendant forfeited his argument against the
amount of the restitution fine by failing to object at sentencing.  ( ADDIN BA xc <@cs> xl 44 s
JYKOVX000014 xhfl Rep xpl 1 l ">People v. Gamache(2010) 48 Cal.4th 347" People
v. Gamache (2010) 48 Cal.4th 347, 409 [finding that defendant
forfeited his argument against the restitution fine for failing to object at
his sentencing hearing];  ADDIN
BA xc <@cs> xl 43 s JYKOVX000015 xhfl Rep xpl 1 l "People v.
Nelson(2011) 51 Cal.4th 198"
People
v. Nelson (2011) 51 Cal.4th 198, 227 [finding that defendant forfeited
his claim by failing to object at the sentencing hearing];  ADDIN
BA xc <@cs> xl 50 s JYKOVX000016 xhfl Rep xpl 1 l "People v.
Turrin(2009) 176 Cal.App.4th 1200"
People
v. Turrin (2009) 176 Cal.App.4th 1200, 1207 [finding that defendant
could not contest a restitution fine for the first time on appeal].)  Defendant offers no argument as to why his argument
against the restitution fine was not forfeited. 
Accordingly, we conclude that defendant’s argument against the
restitution fine is forfeited.

DISPOSITION

            The judgment is affirmed.

 

 

 

                                                                                              ROBIE                          ,
Acting P. J.

 

 

 

We concur:

 

 

 

          MAURO                       ,
J.

 

 

 

          DUARTE                      , J.