Filed 4/10/17 P. v. Bonilla 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

AARON JOSEPH BONILLA,

Defendant and Appellant.

F073335

(Super. Ct. No. 15CR-06643A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge.
Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-



Aaron Joseph Bonilla pled no contest to possession of a firearm by a felon after his motion to suppress the firearm was denied. He argues the trial court erred in denying his motion. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The information charged Bonilla with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), possession of ammunition by a felon (§ 30305, subd. (a)(1)), and carrying a loaded firearm on his person (§ 25850, subd. (a)).
Prior to trial, Bonilla filed a motion to suppress the firearm. The trial court denied the motion after an evidentiary hearing. The motion and ruling will be discussed in detail in the discussion portion of this opinion.
Thereafter, Bonilla entered into a plea agreement wherein he agreed to plead guilty (or no contest) to possession of a firearm by a felon in violation of section 29800, subdivision (a)(1). In exchange, the prosecutor agreed to dismiss the remaining charges, and the parties agreed Bonilla would be sentenced to a midterm of two years in prison. The trial court accepted the plea, and Bonilla was sentenced in accordance with the terms of the agreement.
DISCUSSION
Bonilla appeals from the trial court’s denial of his motion to suppress the firearm. Section 1237.5 generally precludes an appeal from the judgment entered after a plea unless the defendant obtains a certificate of probable cause from the trial court. However, a defendant does not need to obtain a certificate of probable cause when the issue is the lawfulness of a search or seizure first contested in the trial court before the defendant entered a plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1096; Cal. Rules of Court, rule 8.304(b)(4).) We begin our discussion with Bonilla’s motion.
The Moving Papers
The notice of motion sought to “suppress evidence and the fruits of the poisonous tree, pursuant to Penal Code section 1538.5, illegally obtained by officers of the Los Banos Police Department on December 11, 2015.” The evidence sought to be suppressed “includes, but is not limited to, the physical and intangible evidence seized or obtained from the aforementioned search and seizure, as well as a fruit of the poisonous tree .…” The grounds for the motion were that the search violated Bonilla’s Fourth Amendment rights, the police searched him without a warrant, and any consent was revoked before the item was seized.
The accompanying memorandum of points and authorities asserted that the prosecution bore the burden of justifying a warrantless search, and to justify an investigative search, an officer must be able to articulate specific facts which caused him to suspect some activity relating to a crime has occurred or is about to occur, and the person detained is involved in that activity.
The memorandum argued that if the officers believed they had grounds to search Bonilla when they arrived, they would have done so immediately. Since they did not search him immediately, the officers must not have believed they had grounds to do so. Moreover, nothing occurred during the detention that gave them grounds to search Bonilla. Accordingly, the memorandum argued the search was unconstitutional.
The prosecution did not file opposing papers, but the prosecutor made clear at the hearing he was opposing the motion and intended to present evidence to justify the search and seizure.
The Hearing on the Motion
The parties stipulated the search was not conducted pursuant to a warrant, so the prosecutor assumed the burden of establishing the warrantless search was valid. The only witness to testify at the hearing was Los Banos Police Officer Christopher Borchardt.
At the time of the hearing, Borchardt had been a police officer for over nine years. On the day in question, Borchardt and two other officers responded to a report of a suspicious vehicle in a field near an alley with several individuals around the vehicle. The reporting party stated that it appeared the individuals may have been taking parts off the vehicle, and opined the vehicle may have been stolen.
Upon arriving at the scene, Borchardt observed three people, two of whom he recognized from past contacts. The two individuals Borchardt recognized were Elvia Hernandez, who was standing near the trunk of the vehicle, and Bonilla, who was standing near the front of the vehicle. A third individual was standing near the driver side door. Borchardt made several observations as he approached. He had been informed by the dispatch center that the vehicle was not currently registered, yet a sticker for the current year was on the license plate. All four doors, the trunk, and the hood of the vehicle were open. Within the vehicle, Borchardt observed numerous small plastic bindles or baggies consistent with drug sales. He also observed a small digital scale sitting on the center console of the vehicle. There was a white crystalline residue on the scale. The cup holder in the vehicle contained a large bindle containing what Borchardt believed was methamphetamine.
Borchardt initially contacted Hernandez, the person closest to his location. Hernandez claimed she was the owner of the vehicle, even though it was not registered in her name. She admitted the year sticker on the license was not for this vehicle, but she could not register the vehicle because it was in poor condition, and she wanted to avoid police contact for having an expired registration. Hernandez admitted the contents of the vehicle, including the drug paraphernalia, belonged to her. Borchardt arrested Hernandez based on his observations and her admissions.
Borchardt continued his investigation by contacting Bonilla, who remained standing in front of the vehicle. Borchardt’s past encounters with Bonilla also involved controlled substances. Borchardt observed an item in the left pocket of Bonilla’s jacket that appeared to have considerable weight as it was pulling the jacket forward. Borchardt could tell the object was black, and believed it may be a handgun. To ensure officer safety, Borchardt advised Bonilla he was going to perform a patdown search for weapons. Bonilla became nervous and began reaching towards the jacket pocket. Bonilla was stopped from reaching inside the jacket pocket, and a fully loaded, semi-automatic Glock handgun was discovered in the pocket during the patdown search. Borchardt arrested Bonilla because he knew Bonilla was a convicted felon. Subsequent inquiries discovered the firearm had been stolen.
On cross-examination, defense counsel confirmed that Borchardt did not speak with the person who reported the activity at the car to the dispatch center. Borchardt confirmed that upon his arrival, it appeared the vehicle “was either being taken apart or worked on; either of those would be appropriate.” Borchardt also confirmed that when he checked on the registration, he was informed the vehicle had not been reported stolen. Hernandez generally took responsibility for the contraband inside the vehicle.
Defense counsel asked if Borchardt, when he arrived on the scene, concluded it was unnecessary to search any of the individuals present. Borchardt stated the suggestion was not correct. Defense counsel then asked, in essence, why Borchardt did not patdown everyone immediately upon arriving at the scene. Borchardt explained that upon officers arriving at the scene, the suspects were instructed to stay where they were and not make any dangerous or furtive movements. He believed they were a safety concern, but the three officers were taking a systematic approach to address one threat at a time.
Borchardt confirmed Bonilla complied with the commands of the officers, as did the other two suspects. Neither of the male suspects spoke with Borchardt while he was questioning Hernandez.
Defense counsel asked Borchardt if the reason he did not search Bonilla for weapons before speaking with Hernandez was because Bonilla did not appear dangerous. Borchardt explained Bonilla was at the scene where drugs were located. Because of his training, experience, and past contacts with Bonilla, Borchardt knew that in this situation firearms may be present. He then searched Bonilla for weapons at the first opportunity to safely do so.
Defense counsel attempted to exploit what he perceived as a weakness in Borchardt’s testimony by insisting that if Bonilla was actually considered dangerous, he would have been searched immediately. Borchardt explained Bonilla was at all times under observation by a police officer, and he proceeded in a manner he deemed appropriate for officer safety. Borchardt explained the suspects had been commanded to not make any furtive movements, and they were complying with those commands.
Finally, on redirect examination, Borchardt explained that when he saw the object in Bonilla’s pocket, his concern for officer safety increased.
The prosecutor argued that facts articulated by Borchardt justified the temporary detention and the patdown search. Defense counsel focused on the lapse in time between when the officers arrived and when Bonilla was searched to argue the search was unjustified. He argued that if the officers actually believed Bonilla posed a danger to officer safety, they would have immediately searched him upon arriving on the scene. He also pointed out that Bonilla complied with all officer commands and did nothing that would have justified the search. Since an immediate search did not occur, defense counsel argued the officers were not concerned for their safety and had no grounds to search Bonilla. Therefore, the search violated the Fourth Amendment.
The trial court disagreed, concluding the facts justified the patdown search of Bonilla for weapons. The court noted, “I do think that Officer Borchardt did articulate specific facts that justify his patdown search and a quick frisk for weapons to confirm or dispel his suspicion that Mr. Bonilla might, in fact, be armed. But I do think there was reasonable suspicion about the probable cause to arrest, and therefore the motion is denied.”
Applicable Law
Bonilla argues there were not sufficient facts to support the initial detention, his continued detention, or the patdown search.
The Fourth Amendment protects against unreasonable searches and seizures by law enforcement and other government officials. (People v. Rogers (2009) 46 Cal.4th 1136, 1156.) A seizure occurs when a police officer, through force or a show of authority, restrains the liberty of a person. (People v. Souza (1994) 9 Cal.4th 224, 229.) This protection extends to brief investigatory stops when they are unreasonable. (Ibid.) “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.” (Id. at p. 231.)
“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s 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.’ ” (People v. Weaver (2001) 26 Cal.4th 876, 924.)
As Borchardt was the only witness to testify at the hearing, there is no factual dispute about what occurred. Accordingly, substantial evidence supports the trial court’s factual findings. We must decide whether the seizure was reasonable exercising our independent judgment.


The Initial Detention
Bonilla was detained when Borchardt and the other officers arrived on the scene. Borchardt testified he ordered all of the suspects to stay where they were. This was a show of force restraining the movement of the suspects. The Attorney General does not contend otherwise.
Bonilla contends Borchardt did not articulate specific facts to support the initial detention. He places great reliance on the fact no evidence was presented to establish the reliability of the report of suspicious activity that resulted in Borchardt and the other officers proceeding to the scene where the vehicle was located. (See, e.g., People v. Madden (1970) 2 Cal.3d 1017 (Madden) and People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey).)
“In California, certain evidentiary rules have been established to govern the manner in which the prosecution may prove the underlying grounds for arrest when the authority to arrest has been transmitted to the arresting officer through police channels. [Citation.] .… The rationale and general scope of the rule was summarized in Madden: ‘[A]lthough an officer may make an arrest based on information received through “official channels,” the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony. We reaffirmed this principle in the recent case of Remers v. Superior Court [(1970) 2 Cal.3d] 659, 666-667 …, where we pointed out: “It is well settled that while it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, ‘when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness.’ … To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer.… ‘If this were so, every utterance of a police officer would instantly and automatically acquire the dignity of official information; “reasonable cause” or “reasonable grounds,” … could be conveniently fashioned out of a two-step communication; and all Fourth Amendment safeguards would dissolve as a consequence.’ ” ’ ” (People v. Collins (1997) 59 Cal.App.4th 988, 993-994.)
The Attorney General responds that because defense counsel failed to raise an objection on this ground at the hearing, Bonilla has forfeited the right to argue the information provided to Borchardt was not reliable. Bonilla responds that the objection was properly made in the moving papers as well as at the hearing. The Attorney General has the better argument.
“An officer may arrest or detain a suspect ‘based on information received through “official channels.” ’ [Citations.] If a 911 call ‘has sufficient indicia of reliability … a dispatcher may alert other officers by radio, who may then rely on the report, [citation], even though they cannot vouch for it.’ [Citations.] However, upon proper objection [citation], ‘ “ ‘the People must prove that the source of the information is something other than the imagination of the officer who does not become a witness.’ ” ’ [Citations.] This requirement can be met by calling the police dispatcher as a witness at the suppression hearing or by introducing a recording of the 911 call.” (People v. Brown (2015) 61 Cal.4th 968, 983.)
Neither the moving papers, nor defense counsel’s argument, challenged the reliability of the information provided to Borchardt. A defendant making a motion to suppress evidence must do more than allege the search was conducted without a warrant. “The search or seizure must also be unreasonable; that is, it must not fall within any exception to the warrant requirement. To address properly both concepts included in section 1538.5, defendants have the burden of (1) asserting the search or seizure was without a warrant, and (2) explaining why it was unreasonable under the circumstances.” (People v. Williams (1999) 20 Cal.4th 119, 129 (Williams).) The Supreme Court went on to explain in Williams that if the search was based on a warrantless search, the motion to suppress will generally be sufficient if the moving papers establish a prima facie case that the search was warrantless. This rule recognizes that often times it will not be possible for the defendant to determine on what basis the prosecution will argue the search was reasonable. (Id. at p. 130.)
However, if a defendant has a specific argument other than a lack of a warrant, it should be stated in the moving papers so the prosecution will have an opportunity to offer evidence on that point. (Williams, supra, 20 Cal.4th at p. 130.) Once the prosecution has offered its justification for the warrantless search, the defendant must present any arguments as to why the prosecution’s justification is inadequate. (Ibid.) “But, if defendants detect a critical gap in the prosecution’s proof or a flaw in its legal analysis, they must object on that basis to admission of the evidence or risk forfeiting the issue on appeal.” (Ibid.)
We have thoroughly reviewed the proceedings in the above summary. Nothing written or said could be construed as a challenge to the veracity of the information provided to the emergency operator. Thus, the prosecution was not put on notice that it needed to establish the anonymous report had been received, and Bonilla has forfeited any objection to the reliability of the information provided to Borchardt.
In his reply brief, Bonilla argues the moving papers put the prosecution on notice it had the obligation to justify the detention and search. He also argues that because the prosecution did not file any opposition to the motion, he did not have any notice of how the prosecution would attempt to justify the detention and search. Accordingly, relying on Williams, Bonilla concludes the prosecution cannot now argue the issue is forfeited. He notes that the moving papers cited several detention cases. He also notes the statement of facts in the moving papers included the fact the police responded to a report of a suspicious vehicle, and when the officers arrived they found the three suspects around a vehicle that appeared to be in the process of being repaired. Bonilla concludes that the prosecution was put on notice Bonilla was challenging the initial detention.
Bonilla then asserts that during his examination of Borchardt, he established the argument. Bonilla points out the first question on cross-examination asked Borchardt to confirm that Borchardt did not speak to the party reporting the suspicious vehicle to the emergency operator, and the second question asserted that upon arriving at the scene, Borchardt did not see anything “consistent with the idea that this vehicle was being stripped or anything; right?” Bonilla ignores the response provided by Borchardt after several clarifying questions. “Afterwards, [Hernandez’s] statement [that she was getting help to repair the vehicle] could be correct. Upon our arrival, it looked like the vehicle was either being taken apart or worked on; either of those would be appropriate.” Bonilla also points out defense counsel confirmed that Borchardt did not have any reason to believe the vehicle was stolen.
These questions, according to Bonilla, were “intended to demonstrate to the trial court that there were insufficient specific and articulable facts to support any detention, where the officer never spoke to the person who reported the ‘suspicious vehicle,’ the vehicle was not reported stolen, and nothing about the vehicle or persons around it indicated criminal activity was occurring.”
While these facts undoubtedly were intended to challenge the prosecution’s justification for the initial detention, they did not raise the issue of the reliability of the information provided to Borchardt that resulted in his appearance at the scene. Therefore, to the extent Bonilla argues the prosecution failed to prove the information from the dispatch center was reliable as required for a Harvey/Madden hearing, the argument is forfeited.
We also reject Bonilla’s reliance on Williams as support for his argument. Williams involved the specificity required in a motion to suppress. We have cited Williams extensively above. And it is true that the Supreme Court found the defendant’s moving papers sufficient to provide notice to the prosecution on the issue in the case, whether the investigating agency had a policy or procedure when conducting inventory searches of vehicles and encountering closed containers. However, unlike this case, the defendant’s moving papers specifically addressed the issue. “In his moving papers, defendant argued that the police lacked probable cause to stop his truck, and that they had no policy governing inventory searches. Defendant thus anticipated the prosecution’s justifications for the warrantless search of his truck and asserted inadequacies in those justifications. Defendant skipped the steps of first asserting a warrantless search, then waiting for the prosecution to justify the search, and only then challenging the justifications.” (Williams at p. 136.) The fact the defendant specifically argued in his moving papers the police had no policy governing inventory searches distinguishes Williams from this case. Bonilla did not assert in his moving papers the call to the emergency operator was fabricated or unreliable. He did not cite either Harvey or Madden. Therefore, Bonilla’s moving papers did not put the prosecutor on notice that he was contesting the existence or reliability of the call from dispatch.
We also observe the information provided by the dispatch center was not the only basis for the initial detention. As quoted above, upon arrival at the scene it appeared the three individuals working on the vehicle could have been either attempting to repair the vehicle, or could have been attempting to strip the vehicle for parts. These facts were specific enough to support the initial detention.


Continued Detention
“An investigatory stop exceeds constitutional bounds when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible. [Citation.] Circumstances which develop during a detention may provide reasonable suspicion to prolong the detention. [Citation.] There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly.” (People v. Russell (2000) 81 Cal.App.4th 96, 101-102.)
Bonilla argues that even if his initial detention was reasonable, the detention was unreasonably prolonged. Bonilla points out Borchardt had confirmed the vehicle was not stolen, and Hernandez accepted responsibility for the altered vehicle registration and the drugs and paraphernalia found in the vehicle. Therefore, according to Bonilla, it was incumbent on Borchardt to release Bonilla and the third individual at the scene.
Bonilla’s argument is based on the belief that Borchardt was required to accept everything said by Hernandez as the complete truth. In other words, when Hernandez took responsibility for the drugs and paraphernalia, Bonilla’s argument assumes that Borchardt had to accept her admission and conclude it was not possible Bonilla was involved with the drugs and paraphernalia. Bonilla does not cite any case that supports this assertion.
The issue is whether it was reasonable to detain Bonilla once Hernandez spoke with Borchardt and claimed ownership of the contraband. We conclude it was. Simply because Hernandez claimed ownership of the contraband does not mean Borchardt was required to believe her. Borchardt had prior contact with Bonilla that involved drug offenses. The drugs and paraphernalia were inside the vehicle, not in Hernandez’s direct control. Borchardt had not yet spoken to Bonilla who, for all Borchardt knew, may have also claimed ownership of the drugs and paraphernalia. Therefore, it was reasonable for Borchardt to detain all of the suspects until each could be questioned about the criminal activities occurring in and around the vehicle.
The Patdown Search for Weapons
Bonilla’s final argument is that Borchardt did not have reasonable grounds for conducting a patdown search for weapons. Bonilla asserts there was no evidence he posed a threat to officers. This argument is based primarily on the fact Bonilla was cooperative with officers during the entire encounter, and obeyed all commands given to him. Again, Bonilla asserts that if Borchardt believed Bonilla posed a threat, he would have immediately searched for weapons.
The seminal case addressing this type of search is Terry v. Ohio (1968) 392 U.S. 1, in which the Supreme Court held that there cannot be a universal test for determining the reasonableness of a search, but that to justify a warrantless search for weapons, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” (Terry v. Ohio, supra, 392 U.S. at pp. 21-22, fns. omitted.)
We begin with what should be obvious. When a suspect is detained, he at all times poses a risk to police officers even if he appears to be cooperative. Borchardt did not know if Bonilla would continue to be cooperative, or would attempt to fight or flee from the scene at some point. It is reasonable to suspect a defendant would do one or the other when the evidence in plain view suggested the suspects were involved in the sale of methamphetamine. Therefore, there was no assurance Bonilla would continue to comply with orders.
Moreover, from an objective standpoint, Borchardt provided sufficient facts to justify the patdown search for weapons once Borchardt approached Bonilla. Borchardt had discovered evidence of a drug sales operation. He knew Bonilla had been involved in drug offenses in the past. Borchardt observed a heavy object in the pocket of Bonilla’s jacket. Borchardt knew that those involved in the sale of drugs often carry firearms. Borchardt could see the handle of the object in Bonilla’s jacket, and it appeared to Borchardt to be the grip of a pistol. The circumstances faced by Borchardt, a drug sales operation, the likely presence of a firearm, an object in Bonilla’s jacket that appeared to be a firearm, all provided ample cause for Borchardt to conduct a patdown search for weapons.
Finally, Bonilla criticizes the trial court for concluding the facts observed by Borchardt suggested Bonilla was involved in drug sales. The trial court did not make such a finding. Instead, it concluded, as we have, that Hernandez’s claim of ownership of the drugs and paraphernalia does not mean that Bonilla could not have been the actual possessor of the items. The issue in this case was whether Borchardt had reasonable grounds for detaining Bonilla and the other suspects, and whether he had reasonable grounds for searching Bonilla for weapons. The situation as presented provided ample grounds for the initial detention, the continued detention once evidence of drugs and paraphernalia suggesting drug sales was discovered in plain sight inside the vehicle, and the patdown search for weapons when Borchardt’s observations led to the conclusion Bonilla was armed with a firearm.
DISPOSITION
The judgement is affirmed.