P. v. Lopez

Filed 4/20/07 P. v. Lopez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

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

Daniel J. Buckley, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Peter Joseph Lopez appeals from the judgment entered following his convictions by jury on count 1 - kidnapping to commit robbery (Pen. Code,  209, subd. (b)(1)), count 2 kidnapping for carjacking (Pen. Code,  209.5, subd. (a)), and count 3 second degree robbery (Pen. Code,  211) with, as to each offense, firearm use (Pen. Code,  12022.5, subd. (a), 12022.53, subd. (b)), on count 4 assault with a firearm (Pen. Code,  245, subd. (a)(2)) with firearm use (Pen. Code, 12022.5, subd. (a)), and count 5 - criminal threats (Pen. Code,  422) with firearm use (Pen. Code, 12022.5, subd. (a)), following the denial of a suppression motion (Pen. Code,  1538.5). The court sentenced appellant to prison for life with the possibility of parole, plus 10 years.

We conclude the trial court properly denied appellants suppression motion. A detective aware of specific facts providing a reasonable basis to detain suspects in this case prepared a bulletin containing those facts. An undercover officer who saw the bulletin, and later saw appellant and others, believed appellant and the others matched the description of the suspects. That officer caused a third patrol officer to allegedly detain appellant. However, even if appellant was detained, the detention was lawfully based on the bulletin, the undercover officers observations, and the third patrol officers detention of appellant shortly after the undercover officer saw him.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on April 6, 2005, appellant and Rebecca Vasquez feigned an argument in a car in Fullerton, and Vasquez left the car. Matthew Lee, in a pickup truck, offered to give Vasquez a ride and she accepted. Lee drove Vasquez to a trailer in a trailer park at 11208 Garvey in El Monte near Peck Road. Once there, appellant exited the trailer, Vasquez indicated Lee had driven her to the location, and appellant indicated others had not yet arrived. Vasquez pointed a gun at Lee, ordered him to exit the pickup truck, and told him other persons would take the pickup truck. Lee complied. Vasquez gave the gun to appellant, and Vasquez and appellant directed Lee to enter the trailer.

Once inside the trailer, appellant pointed a gun at Lee and bound his hands and feet. His wallet was taken from his pockets. Appellant used Lees ATM card to obtain $500 from Lees bank account. After appellant returned from the bank, an unidentified person kicked Lee in the face.

Later, Lee, who was bound, blindfolded, and gagged, was placed in the back seat of the pickup. Appellant drove Vasquez and Lee to various locations. Eventually, Vasquez entered the pickup truck without appellant and drove Lee to another location. Lee freed himself and fought for Vasquezs gun. Vasquez exited the pickup truck, and Lee drove away.

On April 6, 2005, the $500 was withdrawn from an ATM at a 7-Eleven on Ramona in El Monte. Police recovered a lottery ticket from the pickup truck. The ticket had been purchased about 7:12 a.m. on April 6, 2005, at a Chevron station at 11435 Valley Boulevard in El Monte. Following his arrest, appellant told police the following. Appellant was involved with two persons who feigned an argument. Appellant left and went to his residence. He tied up and assaulted Lee, forced Lee at gunpoint to disclose his PIN number, and went with another person to a 7-Eleven and withdrew $500 from Lees bank account. Appellant went to a Chevron station at Peck and Valley, and bought a lottery ticket which he placed in Lees pickup truck. Appellant presented an alibi defense.

CONTENTION

Appellant contends the trial court erroneously denied his suppression motion.

DISCUSSION

1. Pertinent Facts.

a. Suppression 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. El Monte Police Detective Brian Keith Glick was assigned to investigate the April 6, 2005 carjacking and kidnapping in which Lee was the victim.

(1) Glicks Testimony.

Glick testified as follows. On April 6, 2005, Lee met with Officer Rodriguez. Lee pointed out to Rodriguez a possible location where Lee had been detained, but Lee could not positively identify the location. Prior to April 8, 2005, Glick had read Rodriguezs report which indicated Lee could not describe a possible third assailant.

Glick met with Lee on April 8, 2005. Lee pointed out to Glick a location where the events occurred and where he had been falsely imprisoned. Lee was not certain of his identification of the residence where the events occurred. However, Lee tentatively identified the location, which was 11208 Garvey. On April 8, 2005, Glick also drove Lee to several other locations in the area that were similar to the area of Peck and Garvey. Lee was unable to positively identify the location where the crime occurred.

Based on Glicks investigation, he believed portions of the crime occurred in the area of Peck and Garvey in Los Angeles County. Pursuant to his investigation, Glick, on April 14, 2005, prepared a crime bulletin (Peoples exhibit No. 1) describing three suspects. The bulletin indicated Glick believed the suspects could be found in the area of Peck and Garvey. The bulletin did not indicate that Lee was uncertain of his identification of the location. The bulletin described a female suspect as having a freckled or weathered face.

The bulletin, an El Monte Police Department Special Bulletin dated April 14, 2005, reflects the following. Suspect one was a Hispanic female between 22 and 27 years old, 5 feet 7 inches tall, and weighing 155 pounds. She had long wavy brown hair, a freckled or weathered face, brown eyes, and pink stretch marks on her abdomen. She also appeared to be seven to eight months pregnant. According to the bulletin, the weapon used was a semiautomatic firearm, and the vehicle was a white, late l980s Honda Accord.

Suspect two was a male Hispanic between 18 and 20 years old, 5 feet 8 inches tall, and weighing 140 pounds. He had black hair but a shaved head. Suspect two spoke in cholo slang. The vehicle was a black late 1980s Datsun 280Z with an unknown front license plate number and T-tops. Suspect three was a male Hispanic, 5 feet 8 inches tall, weighing 160 pounds, and with black hair and a mustache. Glick had received that information from photographs and videos from 7-Eleven and Chevron stores. Lee had told Glick that Lee could not identify the third assailant.[1] The bulletin reflects Glick requested it. The bulletin contains two photographs. Each depicts what appears to be a cashier and two males facing the cashier. The female suspect was not depicted.

The bulletin, in narrative, reflects as follows: About 2:00 p.m. on April 6, 2005, the victim gave suspect one a ride to a friends house in El Monte, possibly in the area of Peck and Garvey. Suspect one pointed a handgun at the victim and, along with suspect two, ordered the victim into a house. The victim was bound and forced to ingest an unknown substance. The victim was later gagged, blindfolded, and assaulted by suspect three. The victim was subsequently forced back into his vehicle and driven to various unknown locations by suspects one and two. The victim was still gagged, blindfolded, and bound. While suspect one was driving the victim to another location, the victim was able to break free and fought with suspect one, who was still armed. The victim was able to escape from suspect one in his own vehicle. The photographs attached to the bulletin were taken from video at a 7-Eleven store at Ramona and Maxson, and the Chevron station at Peck and Valley. The two male subjects in the photos were suspects two and three. Any similar persons located were to be field identified and photographed, and Glick was to be called immediately.

Glick testified as follows. Officer Lopez, an undercover officer (hereafter, undercover officer), called Glick at home. The undercover officer previously had reviewed the videos with Glick. The undercover officer told Glick that the undercover officer had been on his way home when he saw suspects fitting the description of persons in the bulletin standing in front of 11208 Garvey. Glick asked the undercover officer to ask for a marked patrol car to contact the persons if they fit the description. A marked patrol car was dispatched to the area and officers other than the undercover officer contacted the persons.

Officers conducted a pedestrian check of four persons. The four persons were appellant, Michael Pritchard, Faustino Duran, and Rebecca Vasquez. The officers filled out a field identification card as to each of the four persons and took each persons photograph. Glick was told that the four persons had been standing directly in front of 11208 Garvey. The four cards and photographs were given to Glick. Except for Vasquezs photograph, the photograph of each of the four persons was attached to the respective card for that person. The four cards and three photographs were Peoples exhibit No. 2. Vasquezs photograph was attached to a photographic identification folder containing six photographs (Peoples exhibit No. 3).

Glick showed Peoples exhibit No. 3 and other photographic identification folders to Lee. One such folder contained a photograph of appellant that Glick obtained from the California Department of Justice or another government agency.

(2) Lopezs Testimony.

El Monte Police Officer Peter Lopez (hereafter, Lopez),[2] testified as follows: About 6:30 p.m. on April 28, 2005, Lopez was asked to go to the area of Peck and Garvey, specifically, 11208 Garvey, to try to field identify persons. Lopez went there with his partner, El Monte Police Officer Danny Marin, in a marked black and white patrol car. Lopez went there because Marin had received a phone call from one of the special investigations detectives. The detectives told Marin they were investigating a kidnapping or carjacking, and possible suspects were standing outside 11208 Garvey, in front of the trailer park. The officers were about a block from the location when Marin received that information. Lopez had no information about the possible suspects descriptions, and did not know whether Marin had been given that information. Lopez was unaware of the bulletin at the time.

When Lopez arrived, he saw three men, including appellant, and a woman. The four persons were on the sidewalk near the trailer park entrance and in front of the trailer park, and no one else was standing in front of the entrance. The four persons were not standing near any particular trailer. Lopez and Marin, wearing uniforms, parked and approached the four persons.

As Lopez and his partner approached the four persons, the two officers asked the four persons, as a group, if the officers could talk to them for a few seconds. The four replied yes. The officers began talking with the four persons and, during the contact, asked them for their personal information and asked who, if anyone lived in the trailer park. Lopez probably asked each of the four persons if the person had a drivers license or other form of identification. Appellant and Vasquez indicated they lived in the trailer park. The two other persons indicated they lived elsewhere. It took about 15 to 20 minutes to get the personal information, including photographs, from all four suspects. The officers then left.

During the 20-minute period that the officers were there, other uniformed officers probably arrived, but Lopez did not remember. At some point during that same period, he told the four persons, Weve had a complaint of gang activity and we want to talk to you. He did not make that statement before asking to take a photograph. He made that statement sometime during the contact, but not initially.

When Lopez and Marin approached, Lopez had all four persons sit in front of a brick wall. Lopez probably did not ask the four persons to sit, but told them to sit. The four persons were probably between the two officers as a precautionary measure. As an additional precautionary measure, Lopez told the four persons to put their hands in front where he could see them. He probably did not ask them to put their hands in front of them but told them to do so. At some point Lopez asked the four persons if they belonged to a gang. He thought he was investigating possible suspects in an armed kidnapping and carjacking case. That explained why he wanted to see the four persons hands and have them in an area where he could maintain his safety.

Lopez then obtained personal information from the four persons, one at a time. He did not have a camera so an officer had to bring one to the scene. Each time Lopez received personal information from one of the four persons, he told the person to stand and move to another location because he was going to photograph the person. Other uniformed officers wearing standard weapons were probably present. After Lopez finished taking a photograph, he sat that person back down by the wall and proceeded to take the photograph of the next person, following the same procedure. After Lopez had done so as to all four persons, he told them they were free to go. Peoples exhibit Nos. 1 through 3 were admitted in evidence. The parties stipulated no search warrant existed at the time of appellants arrest. Appellant presented no defense evidence.

b. Suppression Proceedings.

During argument on the suppression motion, appellant maintained he was detained when Lopez told him to sit down, and appellant objected that the undercover officer had not testified. Appellant sought suppression of his photograph, any identification of appellant based on the photograph, and appellants subsequent interrogation following his arrest resulting from said identification.

The court noted the bulletin reflected the physical descriptions of the felony suspects, a summary of the crimes, and photographs of the suspects at the Chevron station. The court said that the testimony indicated that Lee identified 11208 Garvey as a possible site of some of the criminal activities, although Lee was uncertain of his identification. The court stated that Lee apparently also identified at least one male, one female, and a possible third individual based on the photograph. The court noted that an officer aware of this information sent another officer to 11208 Garvey to investigate persons there. The latter officer was within blocks of the location and responded almost instantaneously.

The court stated, [j]ust looking at the photograph in the bulletin of the individuals detained, I think Mr. Pritchard probably came closest to one of those individuals who has apparently a T-shirt and a sweatshirt that he is wearing. [] The second individual in the photograph appears to be a slender young individual, has his hat backwards and, arguably, one might say that [appellant] [approximates] the physical characteristics of that individual.

The trial court denied appellants suppression motion, concluding appellants encounter with police was consensual. Alternatively, the court concluded appellants brief detention was justified.

DISCUSSION

The Trial Court Properly Denied Appellants Suppression Motion.

Appellant claims the trial court erred by denying his suppression motion, because, according to appellant, he was detained without lawful grounds. Appellant argues there were no lawful grounds for the alleged detention because the bulletin did not adequately identify the suspects referred to therein, the undercover officer did not testify and therefore failed to connect the suspects in the bulletin with the persons detained at 11208 Garvey, and Lopez lacked a reasonable suspicion because the bulletin was too general.

We assume without deciding that Lopez detained appellant when Lopez told appellant to sit and put his hands in front of him, and appellant complied. A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts which, considered in light of the totality of the circumstances, provide an objective manifestation that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.)

Although appellant complains about the bulletin, Glick prepared it based on his investigation of the crimes in this case and the bulletin reflected information Glick possessed. There is no dispute as to the trial courts factual findings that a crime occurred and Lee, the victim, apparently identified at least one male, a female, and a possible third person based on the photograph.

There was substantial evidence as follows. Lee told Glick about the crimes and above identifications. In the bulletin, Glick included information about the crimes and the above three suspects. The bulletin described three Hispanic suspects, that is, a pregnant female and two males, and the details of the descriptions of the males. The bulletin described suspect three as a male Hispanic, 5 feet 8 inches tall and weighing 160 pounds, with black hair and a mustache. The bulletin contained photographs of the males, including suspect three.

We conclude Glick could point to specific articulable facts which provided an objective manifestation that the three suspects, including suspect three, might have been involved in criminal activity, and those facts were placed in the bulletin.

In People v. Collin (1973) 35 Cal.App.3d 416 (Collin), the court stated, A police officer may detain a person for investigation or questioning upon the basis of information received through official channels. [Citations.] However, if the detaining officer himself does not have personal knowledge of facts justifying the detention, but acts solely on the basis of information or direction given him through police channels, the prosecution must establish in court, when challenged, evidence showing that the officer who originally furnished the information had probable cause to believe that the suspect had committed a felony, or, at the very least, that such officer was in possession of facts amounting to circumstances short of probable cause which would have justified him to personally make the detention. [Citations.] (Collin, at p. 420; see In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1643.) Accordingly, an officer may lawfully detain a person based on a police bulletin when the officer who issued it had grounds to lawfully detain the person. (In re William J. (1985) 171 Cal.App.3d 72, 76.)

In the present case, Glick testified, without objection at the time, that the undercover officer reviewed the bulletin and videos before the undercover officer saw four persons, including appellant, at 11208 Garvey. This address was in the area of Peck and Garvey and, according to the bulletin, Lee gave the female suspect a ride to a house possibly in that area. The undercover officer believed the four persons matched the description of the persons in the bulletin. That is, it appears he believed Vasquez matched the description of the pregnant female referred to in the bulletin, and appellant and the other two males at 11208 Garvey matched the description of a male or males referred to in the bulletin. The court, looking at photographs in the bulletin, noted Pritchard looked like the first person depicted in the photographs, and appellant (apparently suspect number three) was a slender young person and that one might say appellant approximated the second persons physical characteristics.

We conclude the undercover officer could point to specific articulable facts, including the facts contained in the bulletin conveyed through official channels, and the facts depicted in the videos, which authorized him to detain the four persons at 11208 Garvey, including appellant as suspect number three.

Finally, even if Lopez himself lacked a reasonable suspicion to detain appellant, Glick testified without objection at the time that he asked the undercover officer to ask for a marked patrol car to contact the persons whom he had seen, if they fit the description. A marked patrol car was dispatched to the area and other officers contacted the persons. Lopez testified without objection at the time that Marin had received a phone call from one of the special investigations detectives. Marin was told the detectives were investigating a kidnapping or carjacking, and possible suspects were standing outside 11208 Garvey.

We conclude Lopez was entitled to detain appellant based on information conveyed through official channels. (Cf. In re Vincent B. (1981) 125 Cal.App.3d 752, 756.) There was no need for Lopez to have seen the bulletin. Moreover, he was only about a block from 11208 Garvey when directed to contact the four persons, and no one else was in front of the trailer park except those four. The trial courts factual finding that Lopez responded to his radio call almost instantaneously is undisputed. In sum, even if Lopez detained appellant, the detention was lawful and the trial court properly denied appellants suppression motion. None of the cases cited by appellant, or his argument, compels a contrary conclusion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J

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[1] As discussed below, it appears the third assailant was appellant.

[2] El Monte Police Officer Peter Lopez was not the previously mentioned undercover officer.