P. v. >Bell>



























Filed 2/22/13 P. v. Bell CA1/1

Reposted 3/4/13
to attach unmodified opinion

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST APPELLATE DISTRICT



DIVISION ONE




>

THE PEOPLE, Plaintiff and Respondent, v. WALTER BELL, Defendant and Appellant.

A134249 (Contra Costa County Super. Ct. No. 05-111297-8) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

BY THE COURT:

It is
ordered that the nonpublished opinion filed herein on February 8, 2013, be modified as follows:

Replace
the first sentence of the first paragraph of page 9 with the following:

Although
Officer Scott may well have subjectively intended initially only to issue a
citation, that fact does not render the patsearch illegal. The href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Supreme Court has long held the officer’s subjective intent is not
controlling if the action he takes is otherwise objectively reasonable. (Whren
v. United States (1996) 517 U.S. 806, 813; Scott v. United States (1978) 436 U.S. 128, 138.) The officers here had probable cause to
believe defendant had been drinking an alcoholic beverage from an open
container in public in violation of the Pittsburg Municipal Code. In light of all of the circumstances, they
did not violate the Fourth Amendment
by taking defendant into custody for that offense, even if only temporarily,
for the purpose of frisking him to ensure he did not have any concealed weapons
on his person which he could use against them while they completed their
investigation and eventually issued a citation.

This
modification does not change the judgment.

The href="http://www.mcmillanlaw.com/">petition for rehearing is denied.



___________________________

Marchiano,
P.J.

Filed 2/8/13 P. v. Bell CA1/1 (unmodified version)

Received for posting 3/4/13

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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



FIRST
APPELLATE DISTRICT



DIVISION
ONE




>

THE PEOPLE, Plaintiff and Respondent, v. WALTER BELL, Defendant and Appellant.

A134249 (Contra Costa County Super. Ct. No. 05-111297-8)

INTRODUCTION

Defendant
Walter Bell, who admitted to police he was drinking from an open container in
public, was arrested and searched. A
loaded firearm was found in his pocket.
He had prior felony convictions, and he was charged with being a felon
in possession of a firearm, in violation of Penal Code section 12021.href="#_ftn1" name="_ftnref1" title="">[1] His motion to suppress was denied, and he was
subsequently found guilty as charged by a jury.

On
appeal, defendant renews his claim the firearm should have been suppressed
because his detention was unduly prolonged and the patsearch was illegal. He also argues the trial court’s refusal to
instruct the jury on lawful possession of a firearm by a felon in self-defense
was error, and that he is entitled to additional presentence credits under the
latest amendment to section 4019. We
find that defendant’s detention was not prolonged, and that the police had
probable cause to arrest him for drinking in public when they patsearched
him. We also find the trial court was
not required to give defendant’s requested instruction, given the evidence
adduced at trial, and we reject his interpretation of section 4019. Accordingly, we affirm.

STATEMENT OF THE
CASE

An
information filed in Contra Costa County charged defendant with being a felon
in possession of a firearm. (Pen. Code,
§ 12021, subd. (a).) The
information also alleged nine prior convictions, including one that qualified
as a strike under the Three Strikes law.
Following denial of defendant’s motion to suppress evidence pursuant to
section 1538.5, the prior convictions were bifurcated from trial on the
substantive charge. A jury convicted
defendant of the section 12021 violation.
The court found true all but one of the prior convictions. On December 9, 2011, the court dismissed the
prior strike conviction and sentenced defendant to prison for a two-year
term. Defendant timely appeals.

STATEMENT OF
FACTS

At
10:50 p.m. on July 20, 2011, Pittsburg Police Officers James Terry and Brian
Scott were driving through the business parking lots in town conducting
security checks in their marked patrol car.
They saw defendant standing near the Jack In The Box restaurant. Defendant hid something behind the building
as they approached. The officers made
contact with defendant and Officer Terry identified himself as a police
officer. At some point in time, Officer
Scott handcuffed defendant. When Officer
Terry patsearched defendant, he detected an object in defendant’s right front
pocket that felt like a firearm. He went
into the pocket and retrieved a .380 semiautomatic firearm. He handed it to Officer Scott, who removed
the magazine from the gun and six rounds of ammunition from the magazine. Based on his training and experience, Officer
Terry opined that the firearm was capable of firing a live round.

Defendant
testified on his own behalf. At the time
of trial, he was 50 years old and was taking Percodan, Thorazine and Dilantin
for pain and mental illness. On July 20,
2011, he was homeless. Living on the
street was dangerous, and one of his friends was killed. At that time, he had been getting phone calls
from somebody who said he was going to kill defendant and his wife. He did not know who the caller was. The person called him frequently: two and three times a day, two or three times
a week. The person called from a blocked
number; the reason he answered phone calls from blocked numbers is that his
doctors also sometimes called him from blocked numbers.

Some
time before July 20, 2011, he found a gun on Loveridge Street. He kept the gun because he was scared that
the caller was going to make good on his threats to kill him and his wife. At the point that the police approached him
on July 20, he felt as though someone was going to kill him at any moment. He thought “somebody’s going to kill me
because they say they’re going to kill me and I don’t know who it is.” Asked why he had a firearm, defendant
testified: “I found it, then I was
thinking about turning it in but after the threats continue[d], I kept it.”

In
1990, when he was 30 years old, defendant was convicted of assault with a
deadly weapon, battery with serious body injury, and false imprisonment, all felonies. He knew he was not allowed to possess a
firearm.

DISCUSSION

>Denial of Motion to Suppress

Defendant
argues that the trial court erred in denying his motion to suppress. He claims:
(1) the detention was unconstitutionally prolonged; (2) the patsearch
was illegal because there were no facts to support a reasonable suspicion that
defendant was armed; and (3) the patsearch was not justifiable as incident to a
lawful arrest. As we shall explain after
setting forth the facts developed during the hearing on the motion to suppress,
we reject defendant’s argument because the detention was not prolonged and the
patsearch was incident to a lawful arrest for violation of a Pittsburg
Municipal Code ordinance.

>Factual Background

On
July 20, 2011, at approximately 11:00 p.m. Pittsburg Police Officer James Terry
and his partner, Officer Brian Scott, were in their patrol car, driving west
through a commercial parking lot where there was a Chevron gas station and a
Jack In The Box restaurant. Defendant
was standing on the north side of the restaurant.

It
appeared to Officer Terry as if defendant noticed the police car and attempted
to conceal something behind the building.
Defendant was holding an object in his hand; then defendant moved his
hand and the officer could no longer see it.
The officers thought this was suspicious behavior, parked the patrol
car, and approached defendant to see what it was he had concealed. At that time, Officer Terry saw it was a
brown paper bag with an open malt liquor beverage container inside of it. The officers also saw defendant had a cell
phone plugged into an electrical outlet in the building and a black Adidas bag
full of personal items. Less than a
minute had elapsed from the time they initially saw defendant and the time they
made contact with him.

Officer
Scott began to speak to defendant. They
made “small talk” for less than a minute.
Scott asked defendant why he was there, if he knew it was illegal to
have an open container of alcohol in public, and “if he was drinking it.” Defendant admitted he had “a few
drinks.” Defendant did not produce any
type of a permit that allowed him to drink in public under the Pittsburg
Municipal Code. Defendant’s location was
visible to people going through the restaurant’s drive-through, as well as the
people filling up their cars at the gas station.

Officer
Scott asked defendant twice if he had anything illegal on him, and both times
defendant “looked down and mumbled” unintelligibly. At that time, due to defendant’s erratic behavior,
and “[p]aired with the fact that eventually he was going to get a citation for
the [Pittsburg] Municipal Code violation,” Officer Scott determined he was
going to do a patsearch of him “for officer safety purposes” to make sure he
had no weapons.

Officer
Scott asked defendant to place his hands on his head. He did so, but then took his hands off his
head when Scott went to conduct the patsearch.
Scott asked defendant again to place his hands on his head, and at that
time, both officers “grabbed ahold of Mr. Bell’s hands.” Defendant pulled away, and Officer Terry took
him to the ground. Defendant was
handcuffed and arrested. Officer Terry
searched him incident to arrest and found a loaded firearm in his right front
pants pocket. He was subsequently booked
for the firearm possession and resisting and delaying an officer, a violation
of section 148.

>Standard of Review

In reviewing
the trial court’s denial of a motion to suppress evidence under section 1538.5,
we defer to the trial court’s express and implied factual findings if they are
supported by substantial evidence (People v. Woods (1999) 21 Cal.4th
668, 673), and indulge all inferences in favor of the court’s order. (People v. Brown (1990) 216 Cal.App.3d
1442, 1447.) We exercise independent judgment
to determine whether, on the facts found by the trial court, the search was
lawful. (People v. Woods, supra,
at pp. 673–674.)

>The
Detention

Defendant first asserts the
detention was unnecessarily and unjustifiably prolonged. He posits that the purpose of the detention
was to discover what defendant was concealing, and once the police determined
it was an open container, they should have issued the citation instead of twice
asking defendant if he had anything illegal on his person. This argument erroneously presupposes that
defendant was detained as soon as the police officers started questioning
defendant about the open container.

“The United States Supreme Court has
made it clear that a detention does not occur when a police officer merely approaches
an individual on the street and asks a few questions.” (In re Manuel G.
(1997) 16 Cal.4th 805, 821.) “As the
United States Supreme Court explained in Florida v. Royer (1983) 460
U.S. 491 [497]: ‘[L]aw enforcement
officers do not violate the Fourth Amendment by merely approaching an
individual on the street or in another public place, by asking him if he is
willing to answer some questions, by putting questions to him if the person is
willing to listen, or by offering in evidence in a criminal prosecution his
voluntary answers to such questions.
[Citations.] Nor would the fact
that the officer identifies himself as a police officer, without more, convert
the encounter into a seizure requiring some level of objective
justification. . . .’
[Citation.]” (People v. Hughes
(2002) 27 Cal.4th 287, 328.) “An officer
has every right to talk to anyone he encounters while regularly performing his
duties . . . . Until the
officer asserts some restraint on the contact’s freedom to move, no detention
occurs.” (People v. Castaneda
(1995) 35 Cal.App.4th 1222, 1227; see also People v. Dickey (1994) 21
Cal.App.4th 952, 954–955.)

Applying these principles to the
facts adduced at the suppression hearing, we do not believe Officer Scott’s
initial questioning of defendant―described by Officer Terry as “small
talk”―effected a seizure of defendant’s person. Defendant’s freedom to leave was not
curtailed until he was asked to put his hands on his head to facilitate a
patsearch, at which point the police already had probable cause to arrest
defendant for violating Pittsburg’s Municipal Code. However, even if we assume that defendant was
detained the moment Officer Scott asked him if he had anything illegal on him,
that detention was neither unjustified nor unduly prolonged. At that point, defendant’s evasive replies,
which the officer could properly consider as indicative of a consciousness of
guilt, combined with the open container violation, the cell phone plugged into
the building, and the late hour, legitimately contributed to the officer’s
reasonable suspicion that defendant might be concealing something less
innocuous than an open can of malt liquor.
(People v. Souza (1994) 9
Cal.4th 224, 227, 233–235.) The totality
of the circumstances supports the reasonableness, and length, of the detention.

Patsearch of
the Defendant Incident to Arrest

Defendant next argues the patsearch
was illegal because the officers had no basis to suspect that defendant was
armed and dangerous. “ ‘A frisk
following a detention for investigation “is an additional intrusion, and can be
justified only by specification and articulation of facts supporting a
reasonable suspicion that the individual is armed.” ’ [Citation.]”
(People v. Suennen (1980) 114 Cal.App.3d 192, 199.) We agree with defendant the facts articulated
at the hearing do not support a suspicion that defendant was armed. However, that does not mean the officers were
prevented, under the circumstances, from frisking or patsearching defendant
incident to his arrest for violating the city’s open container law.href="#_ftn2" name="_ftnref2" title="">[2]

Pittsburg
Municipal Code (PMC) section 9.28.020
provides: “No person may consume
any alcoholic beverage while upon a privately owned automobile parking lot to
which the public is invited and permitted and open to view from a public street
unless an exception exists under PMC 9.28.050 or unless a permit is
first obtained pursuant to PMC 9.28.070.
[Ord. 1134 § 2, 1997; Ord. 865 § 1, 1984; 1937 Code
§ 536.2.]” PMC section 9.28.050
makes an exception for uses or activities sponsored or hosted by the city. [Ord. 1134 § 4, 1997; Ord. 865 § 1,
1984.] A violation of this law is an
infraction. (PMC
§ 9.28.100.)href="#_ftn3" name="_ftnref3" title="">[3] It
is, therefore, a criminal offense. (Pen.
Code §§ 17, 19.8.)

“If an officer has probable
cause to believe that an individual has committed even a very minor criminal
offense in his presence, he may, without violating the Fourth Amendment, arrest
the offender.” (Atwater v. Lago Vista (2001) 532 U.S. 318, 354 [mandatory seat belt
law].) “Under Atwater,
all that is needed to justify a custodial arrest is a showing of probable
cause. . . . We must
therefore conclude that there is nothing inherently unconstitutional about
effecting a custodial arrest for a fine-only offense.” (People
v. McKay (2002) 27 Cal.4th 601, 607 [riding a
bicycle the wrong way on a residential street].) Here, the police had ample probable
cause to arrest defendant for a violation of Pittsburg Municipal Code section 9.28.020 prior to the patsearch. Defendant was in possession of an open
container of malt liquor. He admitted he
had “a few drinks” from it. His location
was visible to people going through the restaurant’s drive-through, as well as
the people filling up their cars with gas.
He did not produce any type of a permit that allowed him to drink in
public under the Pittsburg Municipal Code.
And, it was obvious from the circumstances that defendant’s drinking was
not a city sponsored or hosted activity.

Defendant,
however, maintains the officers lacked the authority to arrest him for the
Pittsburg Municipal Code violation because they did not see him drinking and, he asserts, “it is undeniably a violation of the Fourth Amendment for a police
officer to arrest a suspect for an infraction when that infraction was not
committed in his presence.”

Defendant
is incorrect on this point. Penal
Code section 836, subdivision (a) prohibits a police officer from arresting a
person without a warrant for committing a misdemeanor, unless the officer has
probable cause to believe the offense has been committed in his or her
presence. However, since the June 1982
passage of Proposition 8 (Cal. Const., art. 1, § 28, subd. (d)), evidence
that is seized pursuant to an arrest violative of Penal Code section 836’s “in
the presence” requirement is not subject to exclusion as long as the arrest
passes muster under the federal Constitution.
(People
v.
Donaldson
(1995) 36
Cal.App.4th
532,
539;
People v. Trapane (1991) 1 Cal.App.4th Supp. 10, 13–14.) There is no federal constitutional
requirement that a misdemeanor be committed in an officer’s presence to justify
a warrantless arrest. (>Street v. Surdyka (4th Cir. 1974) 492
F.2d 368, 371–372; People v. Trapane, supra, at p. 13; Woods v. City
of Chicago (7th Cir. 2000) 234 F.3d 979, 992–995; State v. Walker (Wash.
2006) 138 P.3d 113, 120–121.) Absent a
violation of the federal Constitution, any violation of the state statute does
not provide a basis for exclusion. (See
also People v. McKay, supra, 27
Cal.4th at p. 618 [“[S]o long as the officer has probable cause to believe that
an individual has committed a criminal offense, a custodial arrest―even
one effected in violation of state arrest procedures―does not violate the
Fourth Amendment.”].)

Since the officers had probable
cause to believe defendant had been drinking an alcoholic beverage from an open
container in public, they did not violate the Fourth Amendment by taking
defendant into custody for that offense, even if only temporarily, for the
purpose of frisking him to ensure he did not have any concealed weapons on his
person which he could use against them while they completed their investigation
and/or eventually issued a citation. (In
re Thierry S. (1977) 19 Cal.3d 727, 734, fn. 6 [“ ‘As “temporary
custody” and “arrest” constitute essentially identical procedures, we use those
terms interchangeably and attach no particular significance to the use of
either one.’ ”]; In re Charles C. (1999)
76 Cal.App.4th 420, 425, fn. 3; In
re Demetrius A. (1989) 208 Cal.App.3d 1245.) “ ‘It
is
the
fact
of
the
lawful
arrest
which
establishes
the
authority
to
search,
and
we
hold
that
in
the
case
of
a
lawful
custodial
arrest
a
full
search
of
the
person
is
not
only
an
exception
to
the
warrant
requirement
of
the
Fourth
Amendment,
but
is
also
a
“reasonable”
search
under
that
Amendment.’ [Citation.]” (In
re
Demetrius
A.,
supra,
at
p.
1248, italics
added.) The patsearch of defendant’s
outer clothing and subsequent search of his person, in which the concealed
firearm was discovered, did not violate the Fourth Amendment. Accordingly, the motion to suppress was
properly denied.

>Self-defense Instruction

Defendant requested an instruction
on the lawful possession of a firearm by a felon in self-defense. After extensive discussion with the attorneys
about the imminence of the threat perceived by defendant, the trial court
declined to give CALCRIM No. 2514.
Requested instructions must be given when they are supported by
substantial evidence in the record. In
this context, “substantial evidence means evidence which is sufficient to
deserve consideration by the jury and from which a jury composed of reasonable
persons could conclude the particular facts underlying the instruction
existed.” (People v. Oropeza
(2007) 151 Cal.App.4th 73, 78.) It does
not mean “ ‘[t]he existence of “any evidence, no matter how weak”. . . . ’ ” (People v. Moye (2009) 47 Cal.4th 537,
553, quoting from People v. Flannel (1979) 25 Cal.3d 668, 684–685, fn.
12.) In our view, the request for an
instruction on self-defense by a felon in possession of a firearm was properly
denied here.

CALCRIM No. 2514 provides in
relevant part: “The defendant is not
guilty of unlawful possession of a firearm . . . if [he] temporarily
possessed the firearm in [self-defense or defense of another]. The defendant possessed the firearm in lawful
[self-defense or defense of another] if:
(1) The defendant reasonably believed that [he or someone else] was in
imminent danger of suffering great bodily injury; (2) The defendant reasonably
believed that the immediate use of force was necessary to defend against that
danger; (3) A firearm became available to the defendant without planning
or preparation on [his] part; (4) The defendant possessed the firearm
temporarily, that is, for a period no longer than was necessary [or reasonably
appeared to have been necessary] for self-defense; (5) No other means of
avoiding the danger of injury was available; AND (6) The defendant’s use of the
firearm was reasonable under the circumstances.
[¶] Belief in future harm is not sufficient, no matter how great or
how likely the harm is believed to be.
The defendant must have believed there was imminent danger of great
bodily injury to [himself or someone else].
Defendant’s belief must have been reasonable and [he] must have acted
only because of that belief. The
defendant is only entitled to use that amount of force that a reasonable person
would believe is necessary in the same situation. . . .”

CALCRIM No. 2514 is based upon >People v. King (1978) 22 Cal.3d 12 (>King).
In that case our Supreme Court held:
“[W]hen a member of one of the affected classes [i.e., one previously
convicted of a felony] is in imminent peril of great bodily harm or reasonably
believes himself or others to be in such danger, and without preconceived
design on his part a firearm is made available to him, his temporary possession
of that weapon for a period no longer than that in which the necessity or
apparent necessity to use it in self-defense continues, does not violate
section 12021. As in all cases in which
deadly force is used or threatened in self-defense, however, the use of the
firearm must be reasonable under the circumstances and may be resorted to only
if no other alternative means of avoiding the danger are available. In the case of a felon defending himself
alone, such alternatives may include retreat where other persons would not be
required to do so.” (>Id. at p. 24.)

To warrant an instruction based on >King, there must be more than the
serendipitous acquisition of a firearm and generalized fear. There must also be substantial evidence in the
trial record to support a finding that the defendant’s possession of the
firearm was temporary only, and the threat was imminent. In this case, defendant’s testimony did not
support either of those factual premises.
By defendant’s own admission, his possession of the firearm was open
ended, rather than temporary; he decided to keep it, apparently for as long as
the telephone threats continued. (“I
found it, then I was thinking about turning it in but after the threats
continue[d], I kept it.”) Likewise, the
threat was ongoing and free floating, rather than imminent. He testified he thought “somebody’s going to
kill me because they say they’re going to kill me and I don’t know who it is.” No error appears.

>Section 4019 Credits

Relying
on the reasoning of an opinion in which review has been granted,href="#_ftn4" name="_ftnref4" title="">[4]
defendant argues he is entitled to an additional 35 days of presentence conduct
credit under section 4019 for the period from October 1, 2011, the operative
date of the latest amendment to section 4019, to December 9, 2011, the date he
was sentenced. The latest amendment to
section 4019 provides that a prisoner confined in county jail prior to
sentencing is to receive four days of presentence credit for every two days of
actual custody. (Pen. Code, § 4019,
subds. (a), (b), (c), (e) & (f); Stats. 2011, ch. 15, § 1.) Section 4019, subdivision (h) provides, in
relevant part: “The changes to this
section . . . shall apply prospectively and shall apply to persons
who are confined to a county jail . . . for a crime committed on or
after October 1, 2011. Any days earned
by a prisoner prior to October 1, 2011, shall be calculated at the rate
required by the prior law.” As interpreted
by defendant, this subdivision is ambiguous and should be interpreted to mean
that those prisoners who committed crimes before October 1, 2011, but who are
still confined in county jail as of October 1, 2011, should accrue credits at
the accelerated rate for that period of confinement occurring on or after
October 1, 2011.

A
more recent case, People v. Ellis
(2012) 207 Cal.App.4th 1546 (Ellis),
has rejected this reasoning. The >Ellis court reasoned: “In our view, the Legislature’s clear intent
was to have the enhanced rate apply only to those defendants who
committed their crimes on or after October 1, 2011. [Citation.]
The second sentence does not extend the enhanced rate to any other
group, but merely specifies the rate at which all others are to earn conduct
credits. So read, the sentence is not
meaningless, especially in light of the fact the October 1, 2011, amendment to
section 4019, although part of the so-called realignment legislation, applies
based on the date a defendant’s crime is committed, whereas section 1170,
subdivision (h), which sets out the basic sentencing scheme under realignment,
applies based on the date a defendant is sentenced.” (Ellis,
supra, at p. 1553.) We agree
with this view. Accordingly, we reject
defendant’s contrary argument.

DISPOSITION

The
judgment is affirmed.







______________________

Marchiano, P.J.





We concur:





______________________


Margulies, J.



______________________


Dondero, J.