P. v. Sanchez

Filed 8/28/07 P. v. Sanchez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. James B. Pierce, Judge. Modified and affirmed, with directions.

Law Offices of Allen G. Weinberg and Derek K. Kowata for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Appellant Johnny Lee Sanchez was sentenced to three years in prison for felony possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1).^[1] Appellant appeals the trial courts denial of his motion to suppress evidence and the courts calculation of his presentence credits. We affirm the denial of the suppression motion but modify the judgment to reflect the correct calculation of presentence credits.

FACTUAL AND PROCEDURAL BACKGROUND

On July 9, 2006 at about 9:00 p.m., Long Beach Police Detective Ryan Lebaron and his partner saw appellant pushing a motorbike during their patrol of an industrial area of Long Beach.^[2] Suspicious that the motorbike may have been stolen because pedestrian and vehicular traffic were uncommon in that area during the nighttime, Lebaron drove alongside appellant and questioned his activity. Appellant informed Lebaron that his tire was flat, that he was taking the bike home and that he was on probation in New Mexico for auto theft. Appellant indicated that he had been in Los Angeles for two months and that his case had been transferred to Los Angeles County at his request, but that he had not yet met with his probation officer. Lebaron was suspicious of a possible probation violation because generally an order is issued upon transferring a case to a new jurisdiction to check in immediately with the new probation officer.

Following standard procedure, Lebaron had appellant move to the front of the patrol car where he stood with his hands on the hood while Lebaron conducted a patdown search for officer safety. Within three to five minutes of the initial encounter, Lebaron was satisfied that the bike had a flat tire and that it was not stolen because appellant had the keys and described his purchase of the bike.

But Lebaron remained suspicious that appellant was in violation of the conditions of his probation. While appellant continued to stand with his hands on the hood with Lebarons partner standing behind or beside him so that he could not leave, Lebaron contacted Deputy Probation Officer Chris Coseglia who, in a five-minute conversation, confirmed that appellants probation had been transferred from another state. But Coseglia could not determine from his inadequate computer records, which were not
up-to-date, whether appellants probation included search conditions. Coseglia advised Lebaron to attempt to get consent to search from appellant.

Lebaron then left the car and again spoke to appellant, who was still standing with his hands on the hood, for another three to five minutes with the intent to get consent to search. Lebaron asked whether appellant had anything illegal in his house. Appellant responded that he did not and that Lebaron and his partner could check if [they] wanted.

The officers then followed appellant to his apartment in their patrol car as appellant pushed his motorbike. Once inside, Lebaron instructed appellant to sit on the couch and Lebarons partner stayed with him as Lebaron searched the home. Lebaron discovered a .22 caliber rifle, a gift to appellant from his father, in the laundry room. Approximately 20 minutes had elapsed from the time Lebaron first encountered appellant until they started walking toward the residence. Approximately 40 minutes passed between the first encounter and the discovery of the rifle.

Appellant was charged in an information with one felony count of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1). It was further alleged that appellant had sustained one prior serious or violent strike conviction. ( 1170.12, subds. (a)(d), 667, subds. (b)(i).) Appellant pled not guilty.

Prior to the preliminary hearing, appellant moved to suppress evidence of the rifle. He argued that his consent to search his home was vitiated because it was obtained during a detention that was unlawful from the outset or, alternatively, was unlawfully prolonged. The prosecution argued that appellants consent was voluntary based on the totality of the circumstances, including his probationary status. The court denied the motion, and appellant sought reconsideration of that ruling prior to trial. The court again denied the motion, ruling that the officers had a reasonable suspicion of criminal conduct sufficient to detain appellant with respect to the motorbike and to determine his probationary status. The trial court found that appellants consent to search was voluntary. Appellant withdrew his plea of not guilty and entered a plea of no contest on condition that the court dismiss the prior strike and sentence him to the high term of three years. The court dismissed the prior strike allegation pursuant to section 1385. The court denied probation, sentenced appellant to three years in state prison, ordered him to pay a $200 restitution fine ( 1202.4, subd. (b)) and a $20 court security assessment ( 1465.8, subd. (a)), and suspended a $200 parole revocation fine ( 1202.45). The court granted 123 days credit, consisting of 83 actual days and 40 days of conduct credit. Appellant appealed.

DISCUSSION

I. Contentions on Appeal and Standard of Review

Appellant contends that the trial court erred in not suppressing the rifle because his consent to search his home was given during a detention that was unlawfully prolonged in violation of the Fourth Amendment to the United States Constitution. Appellant also contends that the trial court failed to correctly calculate his credits for time spent in custody and for good conduct.

In reviewing the denial of the suppression motion, we defer to the trial courts findings of fact under the substantial evidence standard of review but exercise our independent judgment to determine whether the search or detention was constitutional under the Fourth Amendment. (People v. Coulombe (2000) 86 Cal.App.4th 52, 56; People v. Avila (1997) 58 Cal.App.4th 1069, 1073.)

II. The Trial Court Correctly Denied the Motion to Suppress Evidence

The Fourth Amendment protects against unreasonable searches and seizures. (Terry v. Ohio (1968) 392 U.S. 1, 9 (Terry).) It requires courts, including state courts, to exclude evidence obtained unconstitutionally. (Mapp v. Ohio (1961) 367 U.S. 643, 655.) Such evidence may be suppressed in California courts under section 1538.5. (People v. Williams (1999) 20 Cal.4th 119, 127 (Williams).)

A totality of the circumstances test applies to determine whether a search is reasonable within the meaning of the Fourth Amendment. [Citation.] That test requires assessing, on the one hand, the degree to which it intrudes upon an individuals privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. [Citation.] (Samson v. California (2006) ___U.S.___, 126 S.Ct. 2193, 2197.) But not all encounters between the public and the police amount to seizures or searches. (Terry, supra, 392 U.S. at p. 13.) To legitimize a detention short of arrest for the purposes of investigation, the prosecution bears the burden of showing that the officer entertained a particularized suspicion of criminal activity. (Williams, supra, 20 Cal.4th at p. 127 [prosecutions burden to justify warrantless search].) Under that standard [a] detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.)

[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given . . . . But law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [Citations omitted.] (Florida v. Royer (1983) 460 U.S. 491, 497.)

Applying these principles, we find that appellants consent to search his residence was voluntary and not the product of an illegally initiated or prolonged detention.

A. The Investigation of the Motorbike Was Reasonable

Whether the initial questioning of appellant amounted merely to a contact or constituted a detention, it was justified by the particular circumstances articulated by Detective Lebaron of a motorbike being pushed rather than driven down a deserted street in an industrial neighborhood during the night. (See In re Danny E. (1981) 121 Cal.App.3d 44, 49; People v. Warren (1984) 152 Cal.App.3d 991, 995996.) Those circumstances supported a reasonable suspicion that the bike could have been stolen and was sufficient for the officer to investigate the situation through simple questioning.

The investigation entered a second phase when appellant was positioned at the front of the police car with his hands on the hood and was subjected to a patdown search for officer safety. But that occurred only after appellant had volunteered the information that he was on probation for auto theft. The detectives already reasonable suspicion of criminal activity was thus heightened by the information that appellant was on probation for the very crime suspected. That heightened level of suspicion justified prolonging and intensifying the detention for the purpose of resolving the ownership of the motorbike. That was done quickly, within five minutes.

B. Prolonging the Detention to Investigate Probation Issues Was Reasonable

But appellants revelation of his probationary status also raised questions regarding the general status and terms of his probation and a suspicion of possible probation violations. Appellant volunteered that probation had been imposed in New Mexico and transferred to California at his request. And although he had been in Los Angeles for two months he could not identify his local probation officer. Detective Lebaron testified that according to his understanding an order to check in with a probation officer would have been immediately issued upon the transfer of the probation to California. These suspicions and ambiguities supported prolonging appellants detention in order to investigate further.

Detective Lebaron called Probation Officer Coseglia in order to determine whether appellant was in compliance with the terms of his probation. Although that discussion established that appellants probation had been transferred from another state, it did not establish his compliance because the pertinent computer records were not updated and the terms of probation could not be determined. It could not be determined whether appellant was subject to search conditions. Further questioning of appellant with respect to his probation was therefore reasonable. (See People v. Brown (1998) 62 Cal.App.4th 493, 499 [questions about defendants probation status did not constitute a general crime investigation. They merely provided the officer with additional pertinent information about the individual he had detained].) In that context, Lebaron asked whether appellant had anything illegal at his home. In response, appellant answered he had nothing illegal and invited the officers to search his residence.

Appellant argues that once Coseglia confirmed that appellants probation had been transferred and gave no information of a particular probation violation, any further detention and questioning was unnecessary and merely constituted a general crime investigation unrelated to the initial stop. We disagree. The discussion with Coseglia did not clarify whether appellant was in violation because the probation records were not complete. Further investigation, therefore, was warranted. (See People v. Brown, supra, 62 Cal.App.4th at p. 499.) Appellant relies on a line of cases limiting investigations conducted during traffic stops, which hold that consent given in response to questions that are not reasonably necessary to the citation process is not voluntary. (People v. McGaughran (1979) 25 Cal.3d 577 (McGaughran); People v. Lusardi (1991) 228 Cal.App.3d Supp. 1.) But those cases do not squarely address the issue presented here because they involved traffic stops for noncustodial offenses, not stops based on suspected criminal activity that evolved to include a reasonable suspicion of possible probation violations. In McGaughran, for example, the court narrowly held only that a police officer who (1) has stopped a motorist for a traffic violation for which the latter cannot be taken into custody and (2) has already detained the offender for the period necessary to perform his functions arising from the violation could not further detain him solely for the purpose of conducting a warrant check. (McGaughran, supra, at p. 586.)

The precedents on which appellant relies do not take into account his status as a probationer. When analyzing the totality of the circumstances surrounding the search of a probationer, the courts take into account a probationers lessened privacy interest and societys heightened interest in overseeing his conduct. The United States Supreme Court has credited the assumption that, by virtue of his status, a probationer is more likely than the ordinary citizen to violate the law and has more incentive to conceal evidence. (Samson v. California, supra, 126 S.Ct. at p. 2197.) At the same time, by virtue of their status alone, probationers do not enjoy the absolute liberty to which every citizen is entitled, [citation] . . . . (Ibid.)^[3]

Here, although Detective Lebaron did not know whether search conditions were attached to appellants transferred probation, he did know that appellant was on probation. The fact of that probation both reduced appellants privacy interest and enhanced societys interest in overseeing his conduct. (Samson v. California, supra, 126 S.Ct. at p. 2197.) Moreover, Detective Lebaron did not undertake a search of appellants home or person at this point. Notably, he did not even request to search appellants home. Rather, he merely asked whether appellant had anything illegal there and appellant invited the search in response. Furthermore, the asking of that additional question did not prolong the otherwise legal detention more than a few additional minutes.

Under these circumstances, we agree with the trial courts conclusion that the invitation to search was voluntarily given and was not the product of an illegally prolonged detention.

III. The Trial Court Miscalculated Appellants Credits

Appellant contends that he was entitled to 87 actual days and 42 days of conduct credit for a total of 129 total days of credit rather than the 123 days he was granted by the trial court. (See 2900.5, subd. (a) [felon entitled to credit for actual time spent in custody prior to commencement of sentence]; 4019 [defendant entitled to two days conduct credit for each four days served].) Respondent concedes that the credits were miscalculated, but argues that appellant can only raise the error in the trial court. ( 1237.1; People v. Mendez (1999) 19 Cal.4th 1084, 11001101.)

Section 1273.1 precludes our reviewing the trial courts calculation of custody credits if an error in the calculation was not raised below. But that section has been interpreted to allow review on appeal if the issue is raised along with others or if resolution of the issue rests solely on arithmetical calculations and not on any factfinding or discretionary determination. (People v. Guillen (1994) 25 Cal.App.4th 756, 764; People v. Acosta (1996) 48 Cal.App.4th 411, 420427.) Here, respondent concedes that appellants contentions are well-taken. Under these circumstances, we will modify the judgment to reflect credit for 87 actual days and 42 conduct days for a total of 129 days of credit.

DISPOSITION

The judgment is modified to reflect 129 days of credit and is affirmed as modified. The superior court is directed to amend the abstract of judgment in accordance with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

DOI TODD

We concur:

____________________________, P. J.

BOREN

____________________________, J.

CHAVEZ

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

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

^[2] The facts are taken from two hearings on the suppression motion.

^[3] We are aware that generally a probationers reduced privacy expectation is tied to his having signed search conditions allowing for warrantless searches of his person and property and that no such conditions are in evidence in this case. (See People v. Sanders (2003) 31 Cal.4th 318, 325327; In re Jaime P. (2006) 40 Cal.4th 128, 134.) But when an officer is aware a defendant is on probation, the probationary status is indicative of some lessened expectation of privacy even if not enough to support a full search of the person or home. (See United States v. Knights (2001) 534 U.S. 112, 119 [lessened liberty interest [i]nherent in the very nature of probation].) We need not define the parameters of that reduced expectation of privacy in this case, except to say it was sufficient to support the officers asking a further question related to appellants probation.