P. v. Vidales

Filed 8/22/07 P. v. Vidales CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. Hugh M. Flanagan and Frank Dougherty, Judges.

Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

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Procedural History

Appellant Daniel Vidales was charged in Merced County Superior Court in three separate cases (Nos. 29488, 29865, 29866) with a number of drug-related offenses occurring on three separate dates. After a consolidated jury trial, Vidales was convicted of two counts of transportation of methamphetamine (Health and Saf. Code,^[1] 11379); one count of possession of marijuana for sale ( 11359); one count of possession of methamphetamine ( 11377, subd. (a)); one count of transportation of more than 28.5 grams of marijuana ( 11360, subd. (a)); and three misdemeanor countsone count of driving under the influence (Veh. Code,  23152, subd. (a)) and two counts, one each, of transportation and possession of less than 28.5 grams of marijuana ( 11360, subd. (b) & 11357, subd. (b)). In a bifurcated proceeding, the trial court found that Vidales had suffered a prior drug offense within the meaning of section 11370.2, subdivision (c), and that at the time of the offense, he was out on bail or on his own recognizance in two other cases. A Penal Code section 667.5, subdivision (b), enhancement was dismissed.

At sentencing, the trial court sentenced Vidales to a total term of 12 years eight months in state prison for the felony counts and imposed various fines and concurrent jail time on the misdemeanor counts. The latter are not challenged on appeal.

factual history

The facts underlying the convictions in the three cases are not relevant to the appellate issues. In brief, they are as follows:

Case No. 29488

On August 30, 2004, Vidales was observed driving erratically and at a high rate of speed. When Vidales was stopped by a CHP officer, Vidales placed his hands in his pockets. When ordered to remove them, Vidales pulled out a small black zippered case containing 3.24 grams of methamphetamine. He also had a small baggie of marijuana in his pants pocket and was later determined to be under the influence of marijuana and methamphetamine.

Case No. 29866

On October 12, 2005, Merced County Sheriffs deputies went to serve a search warrant at a house. When they arrived, they saw Vidales and a female, whom Vidales claims was Rebecca Daniels, in the open garage. Vidales ran but was apprehended. The deputies found methamphetamine and marijuana in the garage, as well as evidence that the narcotics were for sale.

Case No. 29865

On November 2, 2005, Vidales was stopped while driving a car with expired registration. Rebecca Daniels was his passenger. Ultimately, Vidales and the car were searched. Methamphetamine, 230 grams of marijuana, and evidence of narcotics sales were found.

A more detailed discussion related to the traffic stop and search, the subject of a motion to suppress in case No. 29865 and which is being challenged on appeal, is set forth in our legal analysis of the issue.

Discussion

I. Motion to suppress

Vidales contends that the trial court erred when it denied his motion to suppress evidence related to the charges in case No. 29865. An appeal from the denial of a motion to suppress is subject to a settled standard of review. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.] (Peoplev. Glaser (1995) 11 Cal.4th 354, 362; see also Ornelasv. United States (1996) 517 U.S. 690, 699; People v. Ayala (2000) 23 Cal.4th 225, 255.)

On November 2, 2005, Merced County Sheriffs Deputy Justin Metz initiated a traffic stop of a Ford Tempo driven by Vidales. Metz stopped the car because, when he called in the cars registration, the dispatcher informed him that the registration on the car had expired and that the vehicle had a planned non-op on file.^[2] After the stop, Metz walked to the passenger side of the car. As he did so, he noticed what appeared to be a Department of motor Vehicles (DMV) temporary registration permit in the right hand corner of the rear window. Metz said he did not focus on the permit and instead asked Vidales for his registration and drivers license. Vidales appeared very fidgety and nervous. When Metz told Vidales why the stop was initiated, Vidales told Metz that the car had a valid registration and started to get out of the car. Metz told him to stay inside. Metz then walked to the drivers side and had Vidales get out to see what was going on. Metz said that Vidaless demeanor and the fact that he tried to exit the car made him question whether Vidales had a gun or was hiding something. After Vidales got out of the car, Metz asked if he could search Vidales and Vidales gave his consent. Vidales testified that he did not agree to any search, but the trial court resolved this conflict in evidence against Vidales. (People v. Celis (2004) 33 Cal.4th 667, 679 [appellate court must defer to trial courts factual findings when reviewing motion-to-suppress ruling].) Metz found a baggie containing methamphetamine. A subsequent search of the car, incident to Vidaless arrest, yielded marijuana, scales, baggies, and packaging materials. This evidence supported the convictions in case No. 29865 for possession of marijuana for sale, transporting more than 28.5 grams of marijuana, and transporting methamphetamine.

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.) Traffic stops are treated as investigatory detentions for which the officer must be able to point to specific and articulable facts justifying the suspicion that a crime is being committed. (Terry v. Ohio (1968) 392 U.S. 1, 21.) A traffic stop is justified if it is based on a reasonable suspicion that the driver has violated the Vehicle Code or some other law. (People v. Miranda (1993) 17 Cal.App.4th 917, 926; People v. Galceran (1960) 178 Cal.App.2d 312, 316 [state may require vehicles to be properly licensed and registered]; Veh. Code,  4462.5 [a violation of vehicle registration requirements with intent to avoid compliance is misdemeanor].)

Vidales does not dispute that the deputy had reason to stop the car after being informed by dispatch that the registration had expired because the deputy had not yet seen the temporary registration permit. Vidales contends, however, that once the deputy saw the temporary registration permit, the reason for the stop ended and the deputy was obligated immediately to terminate the detention without asking for license or registration information. (Florida v. Royer (1983) 460 U.S. 491, 500 [scope of detention must be tailored carefully to its underlying justification].)

Our state Supreme Court has recently granted review in two cases that raise issues closely aligned with the issues raised hereIn re Raymond C. (2006) 145 Cal.App.4th 1320, review granted March 21, 2007, S149728 (Raymond C.), and People v. Hernandez (2006) 146 Cal.App.4th 773, review granted March 21, 2007, S150038 (Hernandez). In Hernandez, the officer initiated a traffic stop after observing a truck without any license plates. The officer admitted that, before he pulled the truck over, he observed a temporary operating permit in the rear window of the truck that appeared valid on its face. The officer testified that he understood temporary operating permits showed that all registration fees have been paid to DMV while awaiting issuance of license plates. He said he pulled the truck over despite the temporary operating permit because temporary operating permits are often forged. No other information raised a question about the legality of the temporary permit. After the truck was pulled over, the officer asked for a drivers license and registration card. A conflict arose and the driver was arrested. (Hernandez, supra, at p. 775.) The Third Appellate District concluded that the officer had no reasonable grounds to stop the vehicle when the temporary operating permit was lawfully placed, valid on its face, and seen by the police officer.

The issue in Raymond C. is whether a police officer stopping a car with an expired license plate must first look for a temporary tag, and if there is one, end the detention without any further contact with the cars occupants. (Raymond C., supra, 145 Cal.App.4th at p. 1329.) As in Vidaless situation, Raymond C. addresses the scope of the stop, not the stop itself. The officer in Raymond C. saw a valid temporary permit properly displayed only after stopping a vehicle that did not have correctly affixed license plates. The officer contacted the driver anyway, asking for a drivers license and registration. Upon doing so, the officer noticed signs of intoxication and arrested the driver. The Fourth Appellate District concluded there was no constitutional violation, holding that the Fourth Amendment does not require an officer who has lawfully stopped a car to act in the least intrusive manner, if the actions taken are reasonable under the circumstances. In doing so, the court cited Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 663 (Supreme Court repeatedly refused to declare that only least intrusive search is reasonable under Fourth Amendment) and United States v. Sokolow (1989) 490 U.S. 1, 11 (reasonableness of officers decision to stop suspect does not turn on availability of less-intrusive investigatory techniques). The court stated that if the officer had seen the permit before stopping the car, the stop would have been unlawful. On the other hand, once the stop had been lawfully made, there was nothing unreasonable about contacting the driver and asking for a drivers license and registration, even after seeing a temporary permit in the window. The law requires that motorists who are lawfully stopped for a potential traffic violation produce a drivers license and registration upon demand. (Veh. Code,  4462, subd. (a).)

In both cases, the issues center on whether a generalized distrust of temporary registration permits will justify a stop and/or further investigation if seen after the initial detention. This issue was presented to the court in People v. Brendlin (2006) 38 Cal.4th 1107, 1114, but was not decided because the Attorney General conceded the issue. The officer in Brendlin saw a temporary permit and received confirmation that registration renewal was in progress before initiating the traffic stop. The case was decided on another issue.

Two other cases cited by Vidales address the issue and have reached results similar to those in Hernandez and Raymond C. on slightly different facts. In People v. Nabong (2004) 115 Cal.App.4th Supp. 1, 3 (Nabong), the officer in question saw the temporary permit before the stop, but pulled the car over based on a generalized distrust of temporary permits. The court concluded doing so was in violation of the Fourth Amendment.

In United States v. McSwain (10th Cir. 1994) 29 F.3d 558, 561 (McSwain), the officer saw a car without a license plate. As the car passed, the officer noticed there was a temporary registration permit taped to the back window. A traffic stop was initiated to confirm registration status. Upon approaching the car, the officer saw that the temporary registration permit was valid. At this point, the officer no longer had any questions about the registration. However, pursuant to his normal routine, the officer checked the drivers license and registration documents and ran a radio check on the driver. The radio check revealed that the driver was unlicensed and had a criminal history. A subsequent search of the cars interior resulted in the seizure of contraband. The court held that the stop, although valid when initiated, unlawfully was extended after the officer had dispelled any suspicions regarding the validity of the temporary registration permit.

We do not presume to predict the Supreme Courts final resolution of the question, but believe this case is distinguishable from Raymond C. and Hernandez, and the others cited, because the information Metz received from dispatch was inconsistent with the presence of the temporary registration permit. A temporary permit is only issued after the registered owner of a vehicle has timely applied for renewal of his car registration. The temporary permit is displayed so the car may be operated on the highway pending receipt of new registration from the DMV. (Nabong, supra, 115 Cal.App.4th at Supp. 3; see also Veh. Code,  4606.) Metz was not told that registration was pending, but that the cars owner had filed a non-operation certificate. As a result, the temporary permit did not dispel suspicions that the car was being driven unlawfully on the highway.^[3]

This case is similar to People v. Saunders (2006) 38 Cal.4th 1129, 1135, another recent case addressing these issues. In Saunders, the officer did not see the temporary registration permit before the stop. Although he saw the permit after the car was stopped, the car was missing its license plates and the permit did not explain why the vehicle was missing a rear plate. (Id. at p. 1137, fn. 1.) For this reason, the court concluded that the officer was justified in contacting the driver even though the vehicle exhibited a temporary registration permit. (Id. at p. 1137.)

Likewise, in this case, the presence of a temporary permit did not dispel the deputys suspicions. In finding a Fourth Amendment violation, the McSwain court distinguished the facts before it from situations where an officer retains an objectively reasonable, articulable suspicion that a traffic violation has occurred or is occurring. In these situations, further investigation is justified until the officers suspicions are dispelled. (McSwain, supra, 29 F.3d at p. 561.)

Until we receive further direction from our state Supreme Court, we believe the cases we have cited support a conclusion that Vidaless Fourth Amendment rights were not violated when Metz asked to see his registration and drivers license. The presence of the temporary registration permit could not be explained from the information Metz received from the dispatcher. Under these circumstances, we conclude it was reasonable for the deputy to contact Vidales to verify that the car was registered legally.

Vidales has not raised any claim that Metzs other actions following his initial contact with Vidales were unjustified. It has long been the law that when an officer lawfully detains an individual, circumstances that develop later may provide reasonable suspicion to prolong the detention. (People v. Russell (2000) 81 Cal.App.4th 96, 102.) As Metz approached the car, Vidaless demeanor was suspicious and Metz asked him to get out of the vehicle. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 109 [requesting driver to step out of car after lawful traffic stop is reasonable and minimal intrusion].) This led to a consensual search and seizure of the contraband, which formed the basis for the subsequent arrest. We conclude there is no Fourth Amendment violation and the trial court did not err in denying the motion to suppress.

II. Griffin error

Vidales contends that the prosecutor made a series of comments that dared or challenged him to testify in violation of Griffin v. California (1965) 380 U.S. 609. The Fifth Amendment forbids a prosecutor from commenting on an accuseds silence. (Ibid.) Directing a jurys attention to a defendants failure to testify at trial runs the risk of inviting the jury to consider the defendants silence as evidence of guilt. (Id. at pp. 614-615.) In evaluating Griffin error, we must determine whether there is a reasonable likelihood that the jury construed the prosecutors argument as a comment on his failure to testify at trial. (People v. Clair (1992) 2 Cal.4th 629, 663.)

In United States v. Robinson (1988) 485 U.S. 25, the Supreme Court recognized what might best be called the fair-comment exception to the Griffin prohibition. Robinson held that, where a prosecutors reference to the defendants opportunity to testify is a fair response to a claim made by defendant or his counsel, there is no violation of the privilege. (United States v. Robinson, supra, at pp. 31-32.) Griffin was a case in which the prosecution sought to take unfair advantage of the defendants silence. The court held that it was fundamentally unfair to grant defendants the right to remain silent and then use that silence against them. By the same token, although the right to remain silent is a shield, it cannot be used as a sword to cut off the prosecutions fair response to the evidence or argument. (People v. Austin (1994) 23 Cal.App.4th 1596, 1611- 1612, overruled on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 861, quoting United States v. Robinson, supra, 485 U.S. at p. 32.)

In this case, the prosecutors comments did not invite the jury to infer guilt from Vidaless silence. Instead, they were in response to the defenses attempt to elicit Vidaless out-of-court statements to Deputy Tighe. The defense theory was that Vidales was targeted by law enforcement because he refused to be a confidential informant.

Before trial, the prosecution attempted to limit any questioning about whether Vidales refused to be a confidential informant. The court stated that the matter would be ruled upon later as circumstances warranted. During trial, an Evidence Code section 402 hearing was held. A motion was made to exclude any mention by [defense counsel] on cross-examination about eliciting snitch information or that the Merced/Mariposa Narcotics Task Force was involved in these two arrests and that they told these deputies here to go out and arrest Daniel Vidales or any other kind of information . The court ultimately ruled that this evidence would be excluded.

When Tighe was called at trial, defense counsel asked a question the prosecution believed violated the order. The following exchange took place:

[Prosecutor]: Your Honor, can we have a side bar on this, because if hes trying to get his clients statement on the stand, thats why .

[Defense Counsel]: Officers state of mind.

[Prosecutor]: Its not relevant. Put your guy on the stand.

The Court: Wait a minute. Wait a minute. Guys, just slow down. [] []

[Prosecutor]: I think we need to have another hearing on this, because if hes trying to solicit statements his client made to the law enforcement officer, he needs to put his client on the stand, thats the law.

[Defense counsel]: No. The People are trying to make an inference that he ran because of stuff that was found on the dryer, and I think Im entitled to cross-examine on that.

The Court: Hang on. Well see where this is going.

[Prosecutor]: Well, hes going into a statement made by the defendant, your Honor, thats hearsay. Unless he puts his client on the stand and talks about it, then he can go into talking to Deputy Tighe . (Italics added.)

The court ultimately continued the discussion outside the presence of the jury and the matter was resolved. The courts evidentiary ruling is not challenged on appeal.

We conclude that the prosecutors statements are fair comment on the evidentiary issue before the court. While it would have been more prudent to hold this discussion outside the presence of the jury, this exchange is typical of the type of argument that sometimes erupts when there are heated evidentiary disputes. We do not believe the prosecutors comments reasonably can be construed as inviting the jury to consider Vidaless silence as evidence of guilt. First, the arguments were not directed to the jury, but to the court. Second, they referred to the admission of evidence, not the failure of Vidales to testify. Finally, the statements were a responsive argument to defense counsels attempt to get this evidence in, i.e., the only way this evidence could come in is through Vidales himself. This is a fair response to the evidentiary issue and is permissible under Robinson. (See also People v. Jones (1997) 15 Cal.4th 119, 174, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Austin, supra, 23 Cal.App.4th at pp. 1611-1613.) Here, there was no attempt to suggest Vidaless failure to testify regarding his statement to Tighe was substantive evidence of guilt. As a result, the rationale of Griffin is inapplicable.

Moreover, brief and mild references to a defendants failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. [Citation.] (People v. Turner (2004) 34 Cal.4th 406, 419-420.) Even if we concluded that the prosecutors comments violated Griffin, we would still hold any error was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18.) The prosecutors comments were isolated and not related to any evidence heard by the jury. Further, there is no evidence that Vidales was asked to be an informant, and even if he had been asked and refused, that he was targeted or that the officers involved in the various arrests knew of his refusal.

We also reject the argument that the prosecutors remarks precluded the jury from accepting Vidaless suggestion that the drugs actually belonged to Rebecca Daniels. We see no connection between the prosecutors comments and the evidence concerning Daniels, who was a passenger in the car stopped on November 2, 2005, and who was possibly present in the garage on October 12, 2005. Other than being physically present, there was no evidence to support a conclusion that the drugs belonged to her.

We also reject Vidaless contention that the length of deliberations and requests made by the jury suggest that the verdict was a close one. Even if true, there is no reason to believe the prosecutors comments had any connection to the jurys alleged difficulty in reaching its verdict. The jury had three cases and a total of eight counts to deliberate upon. Under these circumstances, the fact that the jury deliberated for approximately eight hours and 20 minutes does not necessarily mean deliberations were difficult.

In light of the fact that we have addressed the merits of the alleged Griffin error, we need not address Vidaless contention that a waiver of the error constituted ineffective assistance of counsel.

III. Ambiguity in sentence

The last contention is that the sentencing minute order and abstract of judgment reveal an ambiguity in the sentence that requires remand for clarification. Vidales contends it is impossible to determine whether the trial court intended to impose a concurrent or consecutive sentence on count 3 in case No. 29865. The Attorney General concedes the point. We view the issue differently than both parties and conclude that the sentencing documents reflect that the trial court intended to impose a consecutive sentence on this count.

After imposing a six-year term for count 1 in case No. 29488, the trial court imposed a one-third mid-term of eight months consecutive in case No. 29866 and then stated:

And then in Case No. 29865, that involves a violation of 11360, which has the middle term of three years, so one-third the middle term would be one year, that would be consecutive as well. [] Plus a violation of 11379, again, the mid term of one year, one-third the middle term. I think 11379 is also acharges in there that would be one-third the middle term. Im going to run that third charge concurrent.

Apparently confused by the courts reference to the third charge running concurrent, the prosecutor asked, Which one? The court responded, Thats Count 1, and cited section 11360. The prosecutor then asked, Is that Count 3? The court answered, Yes. Yeah, thats Count 3, and cited section 11379. The prosecutor again tried to confirm which count and what term by asking, [a]nd thats one-third the middle term consecutive. The court answered, Yeah, thats one year on that one. But the 11359, which is Count 2, well do the one-third, one-third mid term. Make that concurrent though. The court then imposed the low term of 16 months concurrent for count 2 in case No. 29865, which was a violation of section 11359. In addition, the court imposed two 2-year enhancements. Counsel confirmed that count 2 was to run concurrent to count 1, but count 3, the section 11379 violation, was to run consecutive. The court ended the sentence discussion by confirming that its total term was to be 12 years, eight months. As we read this exchange, we conclude that the trial court intended to impose a consecutive sentence on count 3 in case No. 29865. Significantly, unless the sentence on count 3 in case No. 29865 is consecutive, the math does not support the total term of 12 years, eight months. Six years (count 1, case No. 29488) plus eight months (case No. 29866) plus one year (count 1, case No. 29865) plus one year (count 3, case No. 29865) plus four years (two Pen. Code,  12022.1, subd. (b), enhancements, case No. 29865), equals 12 years, eight months. The only term not included in this count is that expressly directed as a concurrent sentencecount 2 in case No. 29865. The abstract is consistent with this interpretation of the courts sentencing order.

DISPOSITION

The judgment is affirmed.

_____________________

Wiseman, Acting P.J.

WE CONCUR:

_____________________

Gomes, J.

_____________________

Hill, J.

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^[1]All further statutory references are to the Health and Safety Code unless otherwise noted.

^[2]Vehicle Code section 4604, subdivision (a), provides: Except as otherwise provided in subdivision (d), prior to the expiration of the registration of a vehicle, if that registration is not to be renewed prior to its expiration, the owner of the vehicle shall file, under penalty of perjury, a certification that the vehicle will not be operated, moved, or left standing upon a highway without first making an application for registration of the vehicle, including full payment of all fees. The certification is valid until the vehicles registration is renewed pursuant to subdivision (c). A declaration filed under this provision is called a planned non-operation certification. (.)

^[3]We recognize that Metz does not testify he believed the permit was inconsistent with the information provided by dispatch. He did, however, say that as he approached the car he saw the permit, but did not focus on it. We must draw all reasonable factual inferences in favor of the order we are reviewing. (People v. Needham (2000) 79 Cal.App.4th 260, 265.) Here, we infer that the temporary permit did not assist the officer in determining whether the car was registered lawfully.