Filed 12/11/18 P. v. Bigelow CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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On June 19, 2017, defendant Freddie Dean Bigelow pleaded guilty to felon in possession of a firearm and admitted a prior strike. (Pen. Code, §§ 30305, subd. (a), 1170.12.)[1] On appeal, he contends the trial court erred in denying his motion to suppress (§ 1538.5) and notes an error in the court’s oral pronouncement of custody credit. We modify the judgment and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At 8:53 a.m. on March 6, 2017, Sacramento Sheriff’s Deputy Jaie Sacco was dispatched to a local high school for a trespass complaint. The complainant, who had originally called police at 7:30 a.m., was standing in front of the school when Sacco arrived shortly after 9:00 a.m. The complainant told Sacco he wanted a notice of trespass served on the suspect group, including a White male riding a bicycle and wearing a black beanie. The complainant said the man had “just left” and pointed Sacco in the direction he had headed. Less than a minute later, Sacco saw a man matching the description within a quarter mile of the school. The man was turning in to a local park and Sacco followed him. Sacco did not see any other pedestrians or bicyclists at the time. He testified he initiated the contact to “have a notice of trespass served on” defendant and that he “detained him” and performed a records check, which took less than a minute. The records check revealed that defendant was on searchable probation; Sacco then searched him and found .40-caliber ammunition in his backpack.

Prior to trial, defendant moved to suppress the ammunition pursuant to section 1538.5. The trial court held a hearing in June 2017. Sacco testified, and a video of his dashboard camera was played for the court. Defendant argued there was no evidence of loitering because nothing showed defendant intended to commit a crime at the high school and there was no evidence of trespass because he had left the scene by the time Sacco arrived.

The trial court denied defendant’s motion, reasoning Sacco was merely contacting and detaining defendant to serve a notice of trespass and inform defendant he was not permitted on school property. The court explained that a violation of section 602, subdivision (t) classified as a trespasser someone who had entered a property “after having been informed by the peace officer, at the request of the owner that the property is not open to that particular person, and that applies if the person has been convicted of a crime committed on” the property and noted that “[t]he point is it requires notice by a peace officer. This officer is riding off to find the person who [the complainant] said was loitering, not necessarily, I d[idn’t] have a sense [Sacco was] going out to arrest him for loitering. He’s going to contact him, serve him with the notice which is required by law so that [defendant] is on notice that he can’t come over there.” Defendant matched the complainant’s description, making the detention reasonable. The search was reasonable because Sacco discovered quickly that defendant was on searchable probation.

On June 19, 2017, the trial court sentenced defendant to state prison for two years, doubled to four years due to the strike. The court orally awarded 216 days of custody credit (108 days actual and 108 days conduct credit). The minute order and abstract of judgment each reflect an award of 212 days of custody credit (106 days actual and 106 days conduct credit). Defendant timely appealed.

DISCUSSION

I

Motion to Suppress

Defendant contends the trial court erred in denying his motion to suppress. He argues there was no evidence he was trespassing or otherwise engaging in any criminal conduct, making Deputy Sacco’s investigatory detention illegal.

The People counter that Sacco was authorized to notify defendant he was trespassing while on school grounds (as advance notice is required for many trespassing violations) and there was nothing unreasonable about the manner in which he contacted defendant to do so. The People further argue Sacco had reasonable suspicion to investigate unlawful loitering or trespassing. In the alternative, the People argue suppression is not warranted because the discovery that defendant was on searchable probation was an intervening circumstance.

We agree that the investigatory detention and resulting search were appropriate.

“In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.” (People v. Lenart (2004) 32 Cal.4th 1107, 1119.) “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.) “The trial court’s ruling may be affirmed if it was correct on any theory, even if we conclude the court was incorrect in its reasoning.” (People v. Durant (2012) 205 Cal.App.4th 57, 62 (Durant).)

In line with Sacco’s testimony, the trial court found that the deputy contacted and detained defendant to serve a notice of trespass. Arriving at the school nearly an hour and a half after the trespassing call, Sacco was told defendant had just left, and it took him less than a minute to locate defendant, who matched the description provided by the complainant and was only a quarter mile away from the school. Although the court discussed section 602, subdivision (t), which does not appear to apply to defendant due to his lack of a criminal history with the school (see § 602, subd. (t)(2)), the court referenced that section to emphasize the common requirement of prior notice, not to indicate that investigation of defendant for that very crime was appropriate. Sacco clearly did have authority to issue a notice of trespass under the more general section 602, subdivision (o), which prohibits a person from entering upon a private property after having been informed by a peace officer that the property was not open to the person. Serving defendant with such a notice is a prerequisite to his arrest for trespass if he later returned to the school. Moreover, Sacco had authority to detain defendant to conduct a limited investigation of potential trespass or loitering (see § 653b, subd. (a)).

Thus, the stop and search were appropriate.

II

Custody Credits

As defendant notes in his opening brief but the People fail to address, the trial court appears to have made a mistake when it orally pronounced 216 days of custody credit at sentencing. Defendant was entitled to 212 days of custody credit because he was arrested on March 6, 2017, and was sentenced on June 19, 2017, for a total of 106 days actual and 106 days conduct credit. Although ordinarily the oral pronouncement of judgment controls in any discrepancy between the abstract of judgment and the oral pronouncement, courts may correct clerical errors at any time. (People v. Zackery (2007) 147 Cal.App.4th 380, 385; People v. Mitchell (2001) 26 Cal.4th 181, 185.) The mistake in pronouncement was clerical; we modify the judgment to correct the mistake. Given that the abstract of judgment is correct, there is no need to amend it.

DISPOSITION

The judgment is modified to reflect 212 days of custody credit (106 days actual and 106 days conduct). As modified, the judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Raye, P. J.

/s/

Butz, J.