P. v. Gomez

Filed 3/7/07 P. v. Gomez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Tamara Gomez was convicted by a jury of possession of methamphetamine for sale, possession of drug paraphernalia, and possession of 28.5 grams or less of marijuana. (Health & Saf. Code, 11378, 11364, 11357, subd. (b).) On appeal, she contends that the superior court erred in denying her motion to suppress evidence under Penal Code section 1538.5. She further challenges a jury instruction given on the meaning of "sale" in possession for sale, and she asserts sentencing error in the order that she pay attorney fees as a condition of probation. We find the last contention to be meritorious and reverse on that ground alone.

Background

At about 10 p.m. on April 10, 2005, Erik Tiner, a corporal with the police department in Gilroy, was on patrol in an unmarked police car when he noticed a driver, Noel Lara, make two quick right turns. It appeared to Corporal Tiner that the driver had seen him and was avoiding contact with him. Lara then pulled into a closed gas station and left again a few seconds later. Corporal Tiner followed the car a short distance more and then stopped the driver for having something hanging from the rearview mirror. Defendant was a passenger in Lara's car.

Lara and defendant both told Corporal Tiner that they had no identification. After a backup officer arrived, Corporal Tiner asked defendant to step out of the car. He then "asked her if she would mind emptying her pockets," because he suspected that she in fact had identification with her. While she was complying, defendant began fidgeting and shaking her leg, and then a plastic baggie fell out of her pants leg. Corporal Tiner believed that the baggie contained methamphetamine and told defendant to give it to him. Defendant did so, and Corporal Tiner placed her under arrest.

At the police department Corporal Tiner asked Officer Diana Mora to perform a strip search of defendant. In the course of that search defendant handed the officer a baggie containing marijuana residue, another baggie, a partially smoked marijuana cigarette (a "roach"), and a pipe of the type used to smoke methamphetamine. Laboratory analyses revealed that the methamphetamine in the first baggie weighed 6.04 grams; the baggie discovered during the strip search contained methamphetamine weighing 13.71 grams. During trial an expert testified that the quantity of methamphetamine recovered from defendant was typical for a small- to mid-level dealer; the two baggies together contained 380 usable amounts. The witness therefore concluded that the drugs had been possessed for sale. He admitted, however, that it takes more of the substance to smoke it in a pipe, because more of it is lost in that process than if it is snorted.

Defendant was charged with possession of methamphetamine for sale (Health & Saf. Code, 11378), possession of controlled substance paraphernalia (the pipe), a misdemeanor (Health & Saf. Code, 11364), and possession of 28.5 grams or less of marijuana, a misdemeanor (Health & Saf. Code, 11357, subd. (b)). She unsuccessfully moved to suppress evidence under Penal Code section 1538.5 and proceeded to trial.

At trial defendant testified in her own behalf. She said that when she noticed that Lara and she were being followed by the police, she was not especially concerned because she had only a pipe and a "roach" on her. When they reached the gas station she put these items inside her pants. After the patrol car's lights were on, Lara put the baggies of methamphetamine in front of her purse at her feet. Defendant considered Lara a good friend. But she was afraid that Lara would tell the police that the drugs were hers, so she put them down her pants, not realizing that there were two baggies rather than one.

Defendant's description of the encounter with Corporal Tiner was consistent with his. She stated that after she told him she had no identification, the officer asked her if she "would mind stepping out of the vehicle" so that he could search for weapons. Defendant thought he was going to search the car. Corporal Tiner then requested that she go to the front of the car. He asked her if she "would have a problem with removing anything from [her] jacket pockets or [her] pant pockets." Defendant said she did not, and she put some items from her jacket pocket on the hood. Then he asked her if she "would mind if he did . . . a pat, a frisk, or whatever, pat-down." Defendant asked him why, and the officer explained that he believed she might have identification. While trying to show him that she had none, she felt the bag coming out of her pants leg. Upon her arrest Corporal Tiner asked if she had anything that should not be brought into the police car or the station, and she told him about the methamphetamine pipe and the roach. Until the strip search she did not know she had a second bag inside her pants. Defendant insisted that she had not intended to sell the drugs, or even to possess them originally; she had intended only to conceal them. She did admit that she was a methamphetamine user; she saved part of the money that her husband gave her for buying groceries and paying bills, and she used the extra to buy methamphetamine. Sometimes she would share her supply with friends; on other occasions, they would "return the favor" to her. Defendant clarified, however, that "just because they give me some now, they don't usually expect or demand of me to give them when I have it. . . . Whoever was the one who had it, provided it. That was the circle of friends." She bought methamphetamine for herself, she said, not to give it to her friends.

The jury returned a verdict of guilty on all three counts. The trial court suspended imposition of sentence and granted defendant four years' probation, on condition that she serve six months in the county jail. This appeal followed.

Discussion

1. Motion to Suppress

Defendant first argues that her conviction must be overturned because the evidence recovered at the scene of the traffic stop should have been suppressed. In evaluating this contention we adhere to settled principles governing appellate review of Penal Code section 1538.5 rulings. "In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated." (People v. Williams (1988) 45 Cal.3d 1268, 1301; People v. Ayala (2000) 24 Cal.4th 243, 279.) "We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact [which] is subject to independent review." (People v. Ramos (2004) 34 Cal.4th 494, 505.)

Defendant's challenge in this case rests on the assertion that Corporal Tiner had no lawful basis for stopping Lara's car. Vehicle Code section 26708, she argues, does not prohibit any object hanging from a rearview mirror, and the object in question, which was approximately four inches by six inches in size, was not large enough to obstruct Lara's view through the windshield. The People respond that defendant was not detained by either the stop or the request to see her identification.

As defendant points out, the United States Supreme Court recently granted review of People v. Brendlin (2006) 38 Cal.4th 1107, where our Supreme Court held that a passenger in a car that is pulled over for a traffic stop is not "seized" within the meaning of the Fourth Amendment absent circumstances indicating that the passenger was the focus of the officer's investigation or show of authority. Although Brendlin is no longer authority for the People's position, People v. Saunders (2006) 38 Cal.4th 1129 takes the same view. In Saunders the Supreme Court found that a seizure of the passenger occurred not when the officers stopped the truck, but when one officer approached the truck and ordered the passenger to get out. (Id. at p. 1134.) And in People v. Fisher (1995) 38 Cal.App.4th 338 this court held that a passenger is not detained when officers stop a vehicle because a passenger's privacy rights are not implicated in a traffic stop. As in the present case, Fisher had no indication that the red light on the police car was directed at him. The defendant made no attempt to leave and the officer exercised no control over him before asking him to step out of the car. We held that "in constitutional terms a passenger is not 'lawfully stopped' [citation], seized, or detained . . . merely because the vehicle in which he or she is riding is stopped for a traffic violation." (Id. at p. 344.)

Similarly, we conclude in this case that no seizure of defendant was effected by the stop of Lara's car. Corporal Tiner said nothing to defendant before he asked her to step out of the car and asked her if "she would mind" emptying her pockets so that he could ascertain that she did not have identification with her.[1] Defendant was not unlawfully detained by the stop itself.[2]

Defendant alternatively contends that Corporal Tiner unlawfully detained her by making a "show of authority" when he "told" her to stand by the hood of the car. She points out that it was 10:00 at night, the gas station was closed, and as a woman, she "would have been fearful of exposing herself to the risk of harm alone on the street late at night. Even if appellant had money and a cell phonethe record is silentit was dark and she was still some distance from home." In these circumstances, defendant argues, she did not voluntarily consent to stand by the hood of Lara's car.

In denying defendant's suppression motion, the trial court found defendant's act of emptying her pockets "to be a voluntary act and not as submission to authority." As defendant recognizes, this was a factual determination; but instead of showing that substantial evidence does not support the trial court's findings, she merely cites the circumstances leading to the opposite conclusion. It is the province of the superior court, not this court, to weigh the evidence and draw factual inferences; on appeal, "all factual conflicts must be resolved in the manner most favorable to the court's disposition on the motion." (People v. Martin (1973) 9 Cal.3d 687, 692.) The superior court here believed Corporal Tiner's hearing testimony that he asked defendant to get out of the car, that he "asked if she would mind emptying her pockets on the hood of the vehicle" so he could ascertain whether she was carrying identification, and that defendant complied without objection to each of these requests.

This testimony provides substantial evidence of the consensual nature of the initial police encounter with defendant. (Cf. People v. Franklin (1987) 192 Cal.App.3d 935, 941 ["Where a consensual encounter has been found, police may inquire into the contents of pockets . . . ask for identification . . . or request the citizen to submit to a search"].) There was no direct accusation that defendant was carrying a controlled substance, no display of a weapon, no physical touching, and no demand either in words or tone of voice that defendant stand at the hood and empty her pockets. Unfortunately for defendant, during that consensual encounter the methamphetamine slipped out of her pants, thus providing probable cause for her arrest.

2. Jury Instruction

At trial the court instructed the jury on possession for sale (count one) with a modified version of CALJIC No. 12.01, including the following definition of "sale": " 'Sale' means any exchange of methamphetamine, a controlled substance, for cash, favors, services, goods, other noncash benefits, or gift." Defendant contends that it was error to state "that selling methamphetamine included giving it away as a gift," because neither Health and Safety Code section 11378 nor the standard CALJIC instruction prohibits possession "with the purpose of giving it as a gift."

Defendant's argument is based on a misreading of the instruction given. The court did not say that bestowing a gift on someone constitutes a sale; it included "gift" within the list of things for which one could exchange the controlled substance. Although it is awkward to phrase the instruction to suggest that one can sell a product in exchange for a "gift," we presume the jury was capable of understanding that the intended meaning was that the recipient of the drugs would at some point "give" defendant something in return. Even defendant's own testimony, in which she explained that in her circle of friends, "[w]hoever was the one who had it, provided it," could have led the jury to infer that defendant expected to share in someone else's supply in exchange for her providing methamphetamine when she had some to share. The jurors were not obligated to believe that on this occasion she intended to share 19.75 grams, or 380 "usable amounts," without expectation of receiving some in return on a future occasion. Reversal is not required.

3. Attorney Fees

At the sentencing hearing the trial court suspended imposition of sentence and placed defendant on formal probation for four years with a number of conditions, including a six-month jail term and payment of various fees and fines. Among those fees were "attorney's fees not to exceed $1,000." The court also referred defendant to the Department of Revenue "for a determination of her ability to pay the fines and fees." When asked if she accepted probation on the terms stated, defendant responded affirmatively.

Defendant contends that the requirement that she pay attorney fees as a condition of probation was "absolutely prohibited" and therefore must be struck from the disposition. She further argues that the record contains insufficient evidence that she could afford to pay $1,000 or that the amount ordered represented the actual cost to the county for the legal services she received. We need not address defendant's second point because the court did not make a determination of her ability to pay $1,000; indeed, it referred her to the Department of Revenue for that very purpose. The first point, however, has merit.

The People respond that defendant misrepresents the court's order as directing her to pay $1,000 in legal fees. They further contend that defendant's challenge is premature because the trial court only referred defendant to the Department of Revenue for a determination of her ability to pay. The People also suggest that defendant would be "worse off" if the court had actually referred defendant without setting a limit on the amount she might be found able to pay.

Both parties have misstated the sentencing order. The trial court did not order defendant to pay a set amount, but it did order her to pay up to $1,000, and this was clearly one of the listed conditions of probation. Although it referred defendant to the "Department of Revenue" for a "determination of her ability to pay," it did not order a report from that agency or subsequently hold a hearing or make the required determination itself.[3]

Penal Code section 987.8 provides that "[i]n any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof." (Pen. Code,  987.8, subd. (b).)[4] "If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county . . . ."[5] (Pen. Code, 987.8, subd. (e).)

It is clear that the payment of attorney fees may not be imposed as a condition of probation. (People v. Faatiliga (1992) 10 Cal.App.4th 1276, 1280, disapproved on another point in People v. Flores (2006) 30 Cal.4th 1059, 1067; In re Elizabeth S. (1982) 138 Cal.App.3d 450, 454.) And a determination that a defendant has the ability to pay is a prerequisite for entry of an attorney fees order. (Pen. Code, 987.8, subd. (e).) The Supreme Court has approved of remand as a remedy for correction of errors of a similar nature, even after expiration of the six months set forth in subdivision (b) of section 987.8. (People v. Flores, supra, 30 Cal.4th at p. 1068.) Among other things, the court in Flores reasoned that the legislative history of Penal Code section 987.8, subdivision (b) "clearly reveals [that] the Legislature intended to increase the ability of the trial courts to order reimbursement, not to limit it, much less to nullify it." (Id. at p. 1065.) Accordingly, we will remand the matter to the trial court to enable it either to make the determination described in Penal Code section 987.8 regarding appellant's ability to pay attorney fees or to strike the order.

Disposition

The judgment is reversed. The matter is remanded to the trial court with instructions to vacate its previous order directing defendant to pay up to $1,000 in attorney fees. The court shall then either conduct a noticed hearing on appellant's ability to pay attorney's fees pursuant to Penal Code section 987.8 or direct the clerk of the court to amend the abstract of judgment to strike the attorney's fee order. The court may

impose a new order to pay attorney fees if it determines that defendant has the ability to pay. The remainder of the judgment is unaffected by this decision.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

[1]Defendant does not contend that the request to step out of the car was a detention.

[2] Even if we were to address the issue on the merits, we would not reach the conclusion that the stop was unlawful. In the case on which defendant relies, People v. White (2003) 107 Cal.App.4th 636, 642, the officer did not testify that he believed the air freshener hanging from the rearview mirror obstructed the driver's view. By contrast, in this case the People presented testimony from Corporal Tiner that he believed the four-by-six-inch object was impairing Lara's clear view.

[3] Under Penal Code section 987.8, only the court may "make a determination" regarding a defendant's ability to pay. (See Pen. Code, 987.8, subd. (b).)

[4]Penal Code section 987.8, subdivision (b) states: "(b) In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided."

[5] " 'Ability to pay' means the overall capability of the defendant to reimburse the costs or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [] (A) The defendant's present financial position. [] (B) The defendant's reasonably discernable future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernable future financial position. . . . [] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [] (D) Any other factor or factors which may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant." (Pen. Code,  987.8, subd. (g)(2).)