P. v. Castaneda

Filed 7/17/08 P. v. Castaneda CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Marcus Castaneda (Castaneda) appeals from a judgment of conviction and sentence imposed after he pled no contest to receiving a stolen automobile and possessing methamphetamine. (Pen. Code,  496d, subd. (a); Health & Saf. Code,  11377, subd. (a).) He challenges the denial of his pre-plea motion to suppress evidence. (See Pen. Code,  1538.5, subd. (m).) We will affirm the judgment.

I.                    FACTS AND PROCEDURAL HISTORY

A complaint alleged that Castaneda stole an automobile (Veh. Code,  10851, subd. (a)), received a stolen automobile (Pen. Code,  496d, subd. (a)), possessed methamphetamine (Health & Saf. Code,  11377, subd. (a)), possessed controlled substance paraphernalia (Health & Saf. Code,  11364), and possessed burglary tools (Pen. Code,  466).

A.                 Motion to Suppress and Preliminary Hearing

Castaneda filed a motion to suppress evidence pursuant to Penal Code section 1538.5. The motion was heard before a magistrate in conjunction with the preliminary hearing. Evidence at the preliminary hearing included the following.

At 7:00 a.m. on May 5, 2007, police officer Janell Perez, in police uniform and in a marked police vehicle, was conducting routine records checks on vehicles in the parking lot of the Airport Inn in South San Francisco. Previously she had encountered numerous stolen vehicles, drug activity, and persons with outstanding warrants at the motel. Indeed, the Airport Inn was known for stolen vehicles as well as narcotics activities and prostitution.

At approximately 7:30 a.m., Officer Perez discovered in the Airport Inn parking lot a silver 2005 Toyota Camry that had been reported stolen. After notifying the owner and obtaining registration slips of people registered at the motel, Perez obtained an unmarked car to conduct surveillance. She began her surveillance at 8:48 a.m., from a position about 30 feet north of the door to the motel. The Toyota was to the east of the door. Perez wore her police uniform and a black raincoat, which she kept open.

Officer Perez saw two people exit the motel and walk east through the parking lot, in the direction of both the stolen Toyota and the only exit to the parking lot. Perez recognized both individuals: appellant Castaneda, whom she had arrested for auto theft a month or two earlier; and Rachel Lynn Rickaford, whom she recognized from the photographs of registered motel guests.

As soon as Castaneda came out of the motel, he made eye contact with Officer Perez. As he and his companion walked eastbound, Castaneda looked continuously in Perezs direction. After Castaneda and Rickaford walked past the stolen Toyota, Perez lost sight of them and notified Officer Jesse Ledesma and Corporal William Schwartz.

Thirty seconds later, Officer Perez observed Castaneda and Rickaford walking in the opposite direction (westbound) through the parking lot. Castaneda continued to look at Perez and then approached her car and asked what time it was. Perez said she did not know, and Castaneda turned around and walked away.

Officer Perez got out of her car, called Castaneda by name, and said she wanted to speak with him. At trial she could not recall her exact words, but knew that she had not told him to stop and had not given him an order. Her tone of voice was the same as she used while testifying.^[1] When the officer called out to Castaneda, her slacks, shoes, and CB radio, the front of her uniform, and perhaps her badge were visible.

Castaneda continued walking away from Officer Perez until he stopped behind a blue car, which was about 15-20 feet from the officer. He protested that he was not doing anything wrong and asked why she wanted to speak with him.

Castaneda then ducked down behind the blue car for about 10-15 seconds, out of Officer Perezs sight. Concerned that he might be reaching for a weapon, Perez ordered Castaneda to put up his hands. He refused to comply until the officer repeated her command five to ten times. Perez then ordered him to walk away from the blue car, at which point Officer Ledesma and Corporal Schwartz arrived at the scene. Ledesma interviewed Castaneda, while Perez questioned Rickaford.

Officer Ledesma asked Castaneda if he would consent to a pat search. Castaneda agreed. After performing the pat search, Officer Ledesma asked Castaneda for permission to search his pockets; Castaneda again consented. In Castanedas pockets Ledesma found a key to the stolen Toyota. Castaneda was placed under arrest.

Rickaford told Officer Perez that she had been a passenger in the stolen Toyota while Castaneda was driving it.

Corporal Schwartz conducted an inventory search of the Toyota. He found packaging for gold VISA cards and, in plain view on the floorboard, two burglary tools: a set of shaved keys, filed down to allow easy access into a door lock or vehicle ignition, and a porcelain tip, used by vehicle thieves or burglars to shatter car windows.

On the ground behind the blue car where Castaneda had ducked down, Officer Perez located a small bag containing methamphetamine and a glass smoking pipe.

The magistrate denied the suppression motion and held Castaneda to answer on all charges in the complaint.^[2]

B.                 Information and Renewed Motion to Suppress

In June 2007, an information charged Castaneda with the five counts previously alleged in the complaint. Castaneda renewed his motion to suppress and moved to set aside the information under Penal Code section 995.

Based on its review of the evidence at the preliminary hearing, the trial court upheld the magistrates denial of Castanedas suppression motion and denied his Penal Code section 995 motion.

C.                 No Contest Plea and Sentence

On July 19, 2007, Castaneda pleaded no contest to receiving a stolen automobile (count 2) and possession of methamphetamine (count 3). Imposition of sentence was suspended, and the trial court granted Castaneda three years probation on numerous terms and conditions, including that he serve one year in jail.

Judgment was entered accordingly. This appeal followed.

II.                 DISCUSSION

Castaneda contends that he was detained within the meaning of the Fourth Amendment when Officer Perez called his name and asked to speak with him. Contending further that Perez at that point lacked a reasonable suspicion of criminal activity, he argues that the evidence subsequently obtained by the police should have been suppressed.

Where, as here, the appellant brought a renewed motion to suppress evidence in the trial court, which was denied based solely on the evidence presented previously at the preliminary hearing before the magistrate, we disregard the ruling of the trial court and review the determination of the magistrate. (People v. Fulkman (1991) 235 Cal.App.3d 555, 560.) In conducting this review, we defer to the magistrates factual findings, express or implied, where supported by substantial evidence. We exercise our independent judgment in determining whether, on those facts, the search or seizure was lawful under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924; People v. Glaser (1995) 11 Cal.4th 354, 362.)

A.                 Detention

The threshold question is when Castaneda was detained (or seized) within the meaning of the Fourth Amendment. A person has been detained when, in the totality of the circumstances, a reasonable person would have believed that he was not free to leave. (United States v. Mendenhall (1980) 446 U.S. 544, 554 (Mendenhall).)

Consensual encounters between the police and a citizen do not trigger Fourth Amendment scrutiny. (In re Manuel G. (1997) 16 Cal.4th 805, 821.) As our Supreme Court has explained: 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. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individuals liberty, does a seizure occur. (Id. at p. 821; see, e.g., Florida v. Royer (1983) 460 U.S. 491, 497.)

Examples of circumstances that might indicate a detention include: (1) the threatening presence of several police officers, (2) an officers display of a weapon, (3) some physical touching of the person, or (4) the officers use of language or a tone of voice indicating that compliance with the officers request might be compelled. (Mendenhall, supra, 446 U.S. at p. 554; see People v. Cartwright (1999) 72 Cal.App.4th 1362, 1367 [a Fourth Amendment seizure occurs only when an officer intentionally applies hands-on, physical restraint to a suspect [citations] or initiates a show of authority to which a reasonable innocent person would feel compelled to submit [citation], and to which the suspect actually does submit [citation] for reasons that are solely related to the official show of authority. [Citations]].) Generally, the officers uncommunicated state of mind and the citizens subjective belief are irrelevant in assessing whether a seizure has occurred. (In re Manuel G., supra, 16 Cal.4th at p. 821.)

Contrary to Castanedas contention, Castaneda was not detained when Officer Perez called out his name and asked to speak with him. At that point, he was walking away from Perezs vehicle after asking her the time. The officer merely got out of her car, said his name, and said something to the effect that she wanted to speak with him. She did not order him to do anything, she did not tell him to stop, and her tone of voice was the same as she used while testifying. At the time, she was the only officer at the scene, she did not display her weapon, she did not physically touch Castaneda, and she did not use language or a tone of voice that would indicate compliance with her request might be compelled. (See Mendenhall, supra, 446 U.S. at p. 554.) There was no physical restraint or show of force, and a reasonable person in Castanedas position would have felt free to go about his business.

Castanedas arguments to the contrary are unpersuasive. He emphasizes that it was apparent Officer Perez was a police officer, because her uniform was visible through her open jacket, her police radio was visible, and her badge may have been visible as well. The question, however, is not whether Castaneda knew Perez was a police officer. The question is whether a reasonable person in his position would believe that he was free to walk away from that officer. As we discuss ante, this standard was met.

Castaneda also maintains that Officer Perez subjectively considered Castaneda not free to leave until he had answered her questions. An officers state of mind, however, is irrelevant unless it was actually conveyed to the suspect. (Mendenhall, supra, 446 U.S. at p. 554, fn. 6.) There is no evidence Perez told Castaneda he was not free to leave or otherwise shared this thought with him. To the contrary, she testified that her statement to Castaneda was not an order and she did not tell him to stop. The only subjective intent she conveyed was a desire to converse.

Relying on U.S. v. Sandoval (10th Cir. 1994) 29 F.3d 537 (Sandoval), Castaneda insists that Officer Perezs subjective belief was nonetheless relevant because there were gaps or ambiguities in her testimony. He asserts that Perez was unable to recall her exact words and provided no testimony regarding her demeanor when she called his name and got out of the car. His argument is unconvincing. The court in Sandoval stated that an officers subjective intent does not control. (Id. at p. 541.) It then observed merely that the officers admission as to his motivein that caseconfirmed there was no ambiguity in his statement to the suspect. (Ibid.) The officers statement to the suspect in Sandoval, however, was in a far different context than Perezs statement to Castaneda. In Sandoval, the officer had the suspect inside his police vehicle; when the suspect asked Thats it?, the officer replied, No, wait a minute. Under these circumstances, the court ruled, a reasonable person would not have considered himself free to leave the police vehicleexpressly distinguishing a situation in which an officer merely says, May I ask you a question? (Id. at pp. 541-542.) Perezs statement to Castaneda is far closer to the latter scenario, which does not constitute a seizure.

Castaneda next argues that a reasonable person in his position would not have felt free to leave because Officer Perez called him by name, she did not tell him he could leave, and he in fact stopped walking when he paused behind the blue car and ducked out of sight. We are not persuaded. First, Perezs use of Castanedas name might suggest familiarity, but it did not constitute a show of authority. Second, as Castaneda acknowledges, there is no requirement that the officer inform the suspect he is free to leave, and under the instant circumstances such a statement was unnecessary for a reasonable person to conclude he could walk away. Third, stopping momentarily, only to duck out of sight, was by no means compliance with Perezs request to converse with him; nor did it otherwise reflect any submission to the officers authority.

Lastly, Castanedas reliance on People v. Garry (2007) 156 Cal.App.4th 1100 (Garry) is misplaced. In Garry, after briefly observing the defendant from his marked police vehicle, the officer bathed the defendant in light with his patrol cars spotlight, exited the vehicle and, armed and in uniform, briskly walked 35 feet directly to the defendant while questioning him about his probation and parole status. (Id. at pp. 1104, 1111.) The officer disregarded the defendants indication that he was merely standing outside his home, and the defendants ready responses to the officers questions demonstrated that he had submitted to the officers show of authority. (Id. at pp. 1111-1112 & fn. 7.) Here, by contrast, Officer Perez was not in a marked police vehicle, did not employ a spotlight, did not briskly walk directly toward Castaneda, and did not question him while advancing in his direction. Nor, tellingly, did Castaneda answer the officers questions in submission to her authority.

Castaneda urges us to infer that Officer Perez pursued him (as in Garry), because the blue car that Castaneda stopped behind was 15 to 20 feet from Perezs car, but Perez ended up closer to Castaneda, with just the width of the blue car between them. Regardless, the officers actions in Garry are distinguishable. In Garry, the officer walked briskly, for 35 feet, in just two and a half, three seconds, directly toward the defendant. (Garry, supra, 156 Cal.App.4th at p. 1111.) Perez merely walked a few feet in his direction and stopped where there was still an automobile between them. Moreover, the fact that the officer in Garry approached the defendant was just one of a number of factors leading to the conclusion that the defendant was detained. (Id. at pp. 1111-1112.) Neither the same factors nor any equivalent combination of circumstances are present in this case.

Under the totality of the circumstances, a reasonable person in Castanedas position would have believed that he was free to walk away when Officer Perez called his name and indicated her desire to speak with him. There was no detention under the Fourth Amendment at that point, and the record discloses no detention until Perez ordered Castaneda to raise his hands -- after Castaneda had ducked down behind the blue car. Whether this detention was lawful, we address next.

B.                 Reasonable Suspicion

[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. [Citation.] (Illinois v. Wardlow (2000) 528 U.S. 119, 123.)

Once Castaneda ducked behind the parked car, Officer Perez had a reasonable suspicion under the circumstances that he was engaged in criminal activity, or, as the officer feared, was drawing a weapon and imperiling the officers safety. The detention of Castaneda at that point was justified under the Fourth Amendment, and Castaneda does not argue to the contrary.

Nor does Castaneda challenge the legality of the subsequent pat search or the search of his pockets, which, as the magistrate found, were made after obtaining Castanedas consent. Castaneda fails to establish error in the denial of his motion to suppress.

III.               DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

REARDON, J.*

        Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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^[1] Officer Perez testified that she wanted to speak with Castaneda because there was a stolen vehicle in the parking lot, she had arrested him a month or two earlier for auto theft, and she assumed he was on probation (although she did not verify his probationary status). She did not articulate these thoughts to Castaneda. Perez further testified that she did not consider him free to leave at this point, because she wanted to investigate his presence in the area of the stolen car.

^[2] In Castanedas view, the magistrate ruled that Castaneda was detained when Officer Perez called his name and said she wanted to speak with him, but the detention was supported by a reasonable suspicion of criminal activity. We question this interpretation of the magistrates order. At the hearing, defense counsel asked the magistrate whether the court was finding that Perez had reasonable suspicion to detain him based on his walking in a parking lot, asking Perez the time, and the presence of a stolen car in the parking lot. The magistrate replied: I think the added factor of [Castaneda], what I would consider furtive movement that thats how he was looking at the officer and the fact that she also believed that he recognized her or had the opportunity to recognize her as someone who had arrested him before for a stolen vehicle and that when he went behind the car, she was concerned that he might have a weapon because she couldnt see him. (Italics added.) As respondent contends, this remark suggests the magistrate believed Castaneda was detained only after he had ducked behind the car, where Perez could no longer see him, which caused her to tell him to raise his hands.