P. v. Milton
Filed 5/19/08 P. v. Milton CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, Plaintiff and Respondent, v. DANIELLE MILTON, Defendant and Appellant. | B197164 (Los Angeles County Super. Ct. No. NA069148) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
James B. Pierce, Judge. Affirmed.
Joanie P. Chen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
Danielle Milton appeals from a judgment entered after a jury convicted her of possession of methamphetamine and transportation of methamphetamine. She was placed on probation under Proposition 36. Milton contends the trial court erred in denying her motion to suppress evidence and in failing to instruct the jury on the mistake of fact defense. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Summary of the Evidence Presented at the Suppression Hearing
Peoples Evidence
Before trial, Milton moved to suppress a bindle of methamphetamine found on her person during a traffic stop by police At the ensuing hearing, Long Beach Police Detective Donald Mauk testified at around 1:00 a.m. on February 10, 2006, he and Detective James Richardson were in their police car, and saw Milton drive into the parking lot of a bar. Mauk noticed the car registration tags on Miltons license plate had expired.[1] He activated his lights and pulled into the parking lot behind Milton. She was alone in her car. Mauk and Richardson each wore a raid jacket with Long Beach Police patches on the shoulders and the word POLICE written on the back of the jacket.
Milton left her car and began walking towards the bar. Detective Mauk followed Milton onto the sidewalk, ordered her stop and identified himself as a police officer. Milton ignored Mauks command and continued walking towards the bar. Mauk told Milton she was being stopped for having an expired car registration. Milton said she knew her car registration had expired, and Mauk should leave her alone. Milton continued walking about 15 feet ahead of Mauk until Detective Richardson, who had circled ahead of Milton, blocked her path. Milton crossed her arms and allowed Richardson to escort her to the police car. Richardson handcuffed Milton when she became uncooperative and attempted to leave. After Milton was walked back to the car, the detectives performed a check through the police cars mobile computer. They discovered Milton had an outstanding warrant for driving on a suspended license and placed her under arrest. They also confirmed through another computer check that Miltons car registration had expired. Mauk searched the coin pocket of Miltons pants and recovered a bindle containing a white substance that appeared to him to be methamphetamine.
Defense Evidence
Several witnesses testified for the defense. Walter Hillis, an acquaintance of Milton, testified he was on the sidewalk near the bar when he saw an unmarked police car pull up onto the sidewalk without any lights or siren. Milton was on the sidewalk outside the bar. One officer left the car, grabbed Milton, and threw her on the hood of the police car. Surprised, Milton yelled, Hey! Hillis did not hear the officers identify themselves.
Detective James Richardson testified and corroborated Detective Mauks testimony.
Robert Belcher, Assistant Systems Supervisor for the Long Beach Police Communications Division, testified that officers needing assistance in the field either call the police dispatcher or use the mobile computer terminal in the police unit (car). The two types of communications are recorded and retained by the police department as call histories and unit histories, respectively. The February 10, 2006 unit history of Detectives Mauk and Richardson showed at around 1:03 a.m. a computer check was made for any outstanding wants and warrants for Milton. The same date, the detectives also performed a computer check of Miltons license plate number at around 1:04 a.m. for any car registration information. They detectives transported Milton to jail at around 1:12 a.m.
Calvin Flemings, a parolee, testified on the night of August 9, 2003 he was parked on the street. Detective Mauk approached, searched Flemingss car and then left. According to Flemings, Mauk and his partner returned twice, each time searching Flemingss person. When Mauk came back a third time, he arrested Flemings for supposedly not wearing a seatbelt. At the police station, Flemings was strip searched, and Mauk falsely claimed to have found cocaine. Flemings was convicted of possession of cocaine. His extensive criminal history began in 1979.
Milton testified in her own defense at around 1:00 a.m. on February 10, 2006, she had parked her car in the lot of the bar where she worked. Miltons car registration had expired, although her license plate only showed an expired registration tag for the month. The registration tag for the year 2006 was up-to-date because someone had given her the tag. Milton was out of her car, speaking to a friend when she heard someone say, Hey, and was grabbed from behind. Detective Mauk told Milton he had grabbed her because she was ignoring him. Milton said she was unaware he was a police officer. Mauk handcuffed Milton, escorted her to the police car, and asked for her name and birth date. Mauk searched Milton and found in her pants pocket what he thought was a bindle of methamphetamine, although she told him it was not real.
The trial court admitted into evidence Flemingss certified Penal Code section 969b packet and certified printouts (CCHRS/CLETS) reflecting Miltons outstanding warrant for driving on a suspended license in 2004.
The Trial Courts Findings
In denying the motion to suppress, the trial court expressly found Flemings was not a credible witness and the testimony of Hillis and Milton corroborated Detective Mauks testimony. The court believed Miltons cars license plate displayed expired registration tags, which provided the officers with reasonable suspicion to detain her for investigation. When Milton ignored the detectives, was uncooperative, and had an outstanding misdemeanor warrant, they had a right to arrest her and to conduct a search incident to the arrest. The court also found the length of the detention was brief, about nine minutes from running the license plate to transporting Milton to jail.
2. Trial Evidence Relating to Recovered Methamphetamine
Peoples Evidence
Detective Mauk testified the bindle he recovered from Miltons pocket contained what he opined was a usable quantity of methamphetamine.
Gregory Gossage, a criminalist for the Long Beach Police Department, testified he examined the substance, which weighed .08 grams and concluded it contained methamphetamine. The substance also contained methylsulfon, a dietary supplement commonly used to dilute methamphetamine. The sample Gossage tested was at least 50 percent pure methamphetamine.
Defense Evidence
Milton testified in her own defense she had used methamphetamine daily for the past 12 years. The drug looks like chalk or shards of glass to Milton, has a bitter taste and instantly calms her down. Before Milton drove to the bar on February 10, 2006, she obtained a telephone number from a friend. Her friend had written the telephone number on a folded piece of paper that contained what Milton hoped was methamphetamine. Because the two of them frequently gifted each other with methamphetamine, in examining the folded paper and its contents, Milton believed her friend had given her the drug this time. Outside the bar, Milton sat in her car and tasted the substance inside the folded paper. Unlike methamphetamine, the substance tasted salty, and Milton felt no effects from it. Milton was disappointed because the substance was not methamphetamine; it was bunk. Milton left the rest of the substance in the folded paper and pocketed it. She did not dispose of the substance because she needed the telephone number written on the paper.
Michael Henson, Director of Toxicology Services at Pacific Toxicology Laboratories, testified a sample of the substance was tested and found to be 9.9 percent methamphetamine. Most other samples he had tested in the lab were at least 70 percent pure methamphetamine. Over the years the purity of methamphetamine has diminished due to the use of methylsuflon as a cutting agent.
CONTENTIONS
Milton contends her detention was not justified by reasonable suspicion and was unduly prolonged. She further contends the trial court was obligated sua sponte to instruct on the defense of mistake of fact (Judicial Council of Cal. Civ. Jury Instns. (2006) CALCRIM No. 3406).
DISCUSSION
1. The Motion To Suppress Evidence Was Properly Denied
Standard of Review
In reviewing the ruling on a motion to suppress, the appellate court defers to the trial courts factual findings, express or implied, when supported by substantial evidence. (People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (James, at p. 107.) In determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.[2] (People v. Ramos (2004) 34 Cal.4th 494, 505.)
Milton Not Unlawfully Detained or Arrested
Milton does not dispute either the fact her car registration was expired or the propriety of either the warrant check or of her subsequent arrest on an outstanding warrant for driving on a suspended license. Instead, Milton asserts she was initially detained for investigation without reasonable suspicion; the justification for detaining her arising only later, after a computer check revealed her expired car registration.[3]Milton further contends, based largely on defense witnesses testimony, even if her initial investigatory detention were justified, it became unlawful when Milton was grabbed, handcuffed, searched and slammed onto the hood of the police car rather than simply cited and released.
In light of its express factual findings, the trial court disbelieved the defense witnesses testimony where it conflicted with the testimony of Detective Mauks description of the encounter between the detectives and Milton. Substantial evidence supports that determination. Accordingly, we analyze the propriety of the detention and arrest of Milton as described by Mauk.
Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individuals liberty. [Citations.] (In re Manual G. (1997) 16 Cal.4th 805, 821.) An investigatory 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, 229-231; United States v. Cortez (1981) 449 U.S. 411, 417-418 [101 S.Ct. 6901, 66 L.Ed.2d 621]; United States v. Arvizu (2002) 534 U.S. 266, 277-278 [122 S.Ct. 744, 151 L.Ed.2d 740].)
The trial court properly found that regardless of the timing of the computer check to confirm the status of Miltons car registration, her car registration tags were obviously out of date, as Detective Mauk testified and as Milton acknowledged both to Mauk and in her hearing testimony. Driving with expired registration is a Vehicle Code violation (Veh. Code, 4000, subd. (a)(1)). Miltons expired car registration tags alone provided Mauk with reasonable suspicion to detain her for investigation. (See Pennsylvania v. Mimms (1997) 434 U.S. 106, 109 [98 S.Ct. 330, 54 L.Ed.2d 331]; People v. Saunders (2006) 38 Cal.4th 1129, 1135.)
Because Detective Mauk reasonably suspected Miltons car registration had expired, he could detain Milton to confirm or dispel his suspicion. However, Milton resisted his attempts to detain her, thereby prolonging the encounter herself. After Mauk identified himself, ordered her to stop, and explained his purpose for detaining her, Milton refused to comply with his commands. Instead, she first ignored him and then acknowledged her car registration had expired but insisted that he leave her alone. Not until she was physically restrained by Detective Richardson was Milton seized within the meaning of the Fourth Amendment. A seizure occurs when the police, by the application of physical force or show of authority, seek to restrain the persons liberty (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 [88 S.Ct. 1868, 20 L.Ed.2d 889]); the police conduct communicates to a reasonable innocent person that he or she is not free to decline the officers request or otherwise terminate the encounter (Florida v. Bostick (1991) 501 U.S. 429, 436 [111 S.Ct. 2382, 115 L.Ed.2d 389,]); and the person actually submits to that authority (California v. HodariD. (1991) 499 U.S. 621, 626 [111 S.Ct. 1547, 113 L.Ed.2d 690]) for reasons not independent of the official show of authority (Florida v. Bostick, supra, 501 U.S. at p. 36).
The record shows that having detained Milton, the detectives did not unnecessarily extend the investigative detention either in scope or duration. Once Milton was detained by Detective Richardson, she was promptly taken to the police car and asked for identifying information.Using this information, the detectives performed computer checks confirming Miltons car registration was expired and she had a warrant for driving on a suspended license. They properly arrested her based on the outstanding warrant. None of the detectives investigative activities was beyond the scope necessary to effectuate the purpose of the stop. Far from being unnecessarily prolonged, the detectives arrested and transported Milton within minutes after properly detaining her and learning of her outstanding warrant. The search incident to her arrest was lawful. The motion to suppress was properly denied.[4]
2. The Trial Court Had No Duty Sua Sponte To Instruct on the Mistake of Fact Defense
The essential elements of unlawful possessionof a controlled substance are dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially. (People v. Camp (1980) 104 Cal.App.3d 244, 247-248; see People v. Palaschak (1995) 9 Cal.4th 1236, 1241-1242. It has been observed that the statute proscribing the unlawful possessionofcontrolled substances (Health & Saf. Code, 11377, subd. (a)) makes possession illegal without regard to the specific intent in possessing the substance. (People v. Sullivan (1989) 215 Cal.App.3d 1446, 1452.) Although the possessors knowledge of the presence of the controlled substance and its nature as a restricted dangerous drug must be shown, no further showing of a subjective mental state is required. (Ibid.)
At trial, the defense theory was Milton was not guilty because the prosecution did not prove beyond a reasonable doubt she knew the substance in the folded paper was methamphetamine; she only hoped it was. Defense counsel did not seek an instruction on the defense of mistake of fact. Milton now contends the trial court had a duty sua sponte
to instruct the jury on mistake of fact under CALCRIM No. 3406;[5]the mistake she is relying upon is her belief the substance was bunk or not methamphetamine, when it actually was.
Generally, [i]t is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation] - evidence sufficient for a reasonable jury to find in favor of the defendant [citation] - unless the defense is inconsistent with the defendant's theory of the case [citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . . (People v. Salas (2006) 37 Cal.4th 967, 982.) In other words, a trial court must give a requested instruction only when the defense is supported by . . . evidence sufficient to deserve consideration by the jury, not whenever any evidence is presented, no matter how weak. (People v. Williams (1992) 4 Cal.4th 354, 361.)
Here, there is no substantial evidence to support a mistake of fact defense. Milton testified when she examined the substance contained in the bindle, she believed it was methamphetamine. Miltons belief or knowledge of the substances presence and restricted dangerous drug character turned out to be right. Both the defense and prosecution experts testified the substance contained methamphetamine, although it was less than pure having been mixed with a cutting agent.[6]It is not relevant that Milton subsequently changed her mind and decided erroneously the substance was not methamphetamine after tasting it. While this later mistake of fact led to Miltons being caught by the detectives with the methamphetamine; it did not obviate her guilt or disprove the element of knowingly possessing the substance.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WOODS, J.
We concur:
PERLUSS, P. J. ZELON, J.
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[1] Detective Mauk testified he ran the plate and noticed that [Miltons car] had expired registration. Mauk also testified when he first noticed the back license plate, he saw the registration tags had expired and that he then performed a computer check that confirmed Miltons car registration had expired. Mauk acknowledged that in his police report, he wrote that he noticed the expired registration when he ran the plate.
[2] Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art. I, 28, subd. (d); In re Randy G. (2001) 26 Cal.4th 556, 561-562; In re Lance W. (1985) 37 Cal.3d 873, 885-890.)
[3] In their respective briefs, both parties mischaracterize the initial contact between the detectives and Milton as a traffic stop. However, there was no traffic stop in this case; the detectives approached and detained Milton after she had parked and walked away from her car.
[4] Milton makes much of being handcuffed by Detective Richardson, suggesting her detention impermissibly evolved into a de facto arrest because she was handcuffed while being escorted to the police car. However, it would not have been a violation of the Fourth Amendment, even if arguably a violation of state law, for detectives to have arrested Milton for driving with an expired car registration at that point and then conducted a search incident to that arrest, given the presence of probable cause after Miltons admission her car registration had expired. (Virginia v. Moore (2008) 553 U.S. __ [76 U.S. Law Week 4237].)
[5] The standard jury instruction on the mistake-of-fact defense, Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 3406, provides: The defendant is not guilty of _____
[6] Apparently it was uncontested that the methamphetamine was in a usable quantity.
