P. v.
Filed 1/11/13 P.
v. Ferguson CA1/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
A133113
(
Super.
Frederic Ferguson appeals from a
imposed after a jury convicted him of possession
of cocaine base and possession of narcotics paraphernalia. (Health & Saf. Code, §§ 11350, subd.
(a), 11364.) He contends: (1) the court erred by depriving him of his
right to represent himself and by ordering competency proceedings, which
resulted in a delay of his trial in violation of his statutory and
and (2) the evidence against him should have been suppressed because police
recovered it as the result of an unlawful vehicle stop. We will affirm the judgment.
I.
FACTS AND PROCEDURAL HISTORY
Ferguson was charged in an
information with felony possession of cocaine base (Health & Saf. Code, §
11350, subd. (a)), being under the influence of cocaine base, a misdemeanor
(Health & Saf. Code, § 11550, subd. (a)), and misdemeanor possession of
narcotics paraphernalia (Health & Saf. Code, § 11364). The information further
alleged that Ferguson had a prior “strike†conviction (Pen. Code, § 1170.12,
subd. (c)(1)), four prior convictions that rendered him ineligible for
probation (Pen. Code, § 1203, subd. (e)(4)), and two prior convictions for
which he had served a prison term (Pen. Code, § 667.5, subd. (b)).
Ferguson
represented himself at his preliminary
hearing. At his arraignment on
December 7, 2010, however, the court appointed counsel for him over his
objection, and counsel expressed doubt in Ferguson’s mental competency and
moved for a competency hearing. (See
Pen. Code, §§ 1367-1368.) The court
suspended criminal proceedings and appointed two doctors to evaluate
Ferguson. (See Pen. Code, § 1368.)
On
April 4, 2011, after Ferguson had refused to meet with either doctor, the court
found Ferguson competent to stand trial
and reinstated criminal proceedings. The
court also granted Ferguson’s motion to represent himself. (Faretta v. California (1975) 422 U.S.
806 (Faretta).) Ferguson entered a plea of not guilty and
denied the prior-conviction allegations.
On
May 9, 2011, Ferguson filed a “resubmit[ed]†motion to dismiss the charges for
“violation of statutory deadlines . . . [Pen. Code] § 1382, [Pen. Code]
§ 1049.5†– ostensibly speedy trial grounds – alleging a wide variety of
matters. The court denied the motion on
May 20, 2011.
Also
on May 9, 2011, Ferguson filed a motion to
suppress evidence. (Pen. Code, §
1538.5.) The prosecution filed an
opposition to the motion and, on May 19, 2011, after an evidentiary hearing,
the court denied the suppression motion.
A
jury trial commenced on May 31, 2011. On
June 6, 2011, the jury found Ferguson guilty on the charge of possession of
cocaine base (Health & Saf. Code, § 11350, subd. (a)) and the charge of
misdemeanor possession of narcotics paraphernalia (Health & Saf. Code, §
11364). The jury found him not guilty on
the misdemeanor under-the-influence charge (Health & Saf. Code,
§ 11550, subd. (a)).
name="_ftnref1" title="">[1] On June 7, 2011, at the conclusion of a
bifurcated trial on Ferguson’s prior-conviction allegations, the jury found the
allegations true.
On
August 1, 2011, the date set for sentencing, the court declared a doubt as to
Ferguson’s mental competency, suspended criminal proceedings, appointed counsel
for Ferguson for purposes of the competency proceedings, and appointed doctors
to examine Ferguson. (Pen. Code, §§
1367, 1368.)
On
August 29, 2011, the court ruled that Ferguson was not mentally incompetent,
noting that Ferguson had refused to cooperate with the appointed doctors and
they were therefore unable to form opinions.
The court reinstated criminal proceedings. Ferguson again moved to represent himself,
but the court denied the motion.
On
its own motion, the court struck Ferguson’s prior “strike†conviction pursuant
to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. (See Pen. Code, § 1385.) The court then granted Ferguson three years’
supervised probation on the cocaine possession conviction, stayed sentence with
regard to his two prior prison terms, and sentenced him to 447 days in county
jail on the conviction for possession of narcotics paraphernalia, with 447 days
of credit for time served.
This
appeal followed.
II.
DISCUSSION
We consider each of Ferguson’s
contentions in turn.
A.
Trial
Ferguson
contends that, at his arraignment, the trial court erred in appointing counsel
for him and denying him his right to self-representation. He further contends the court erred in
instituting competency proceedings without evidence that he was incompetent as
defined in Penal Code section 1367. He
adds that the competency proceedings caused a delay, requiring him to spend an
extra 113 days in county jail before trial, and denied him his rights to a
speedy trial. We first examine the
background of these pretrial proceedings in greater detail, and then address
Ferguson’s arguments.
1. Background
The
felony complaint was filed against Ferguson on November 4, 2010. On November 8, 2010, he was found capable of
representing himself and refused to waive time.
At a preliminary hearing before Judge Cretan on November 22, 2010,
Ferguson refused to waive time and represented himself. Ferguson was held to answer, and the court
strongly suggested that Ferguson request counsel at his arraignment.
a. Appointment of private
defender and order of competency proceedings
On
December 7, 2010, Ferguson appeared in court for his arraignment before Judge
Novak. Because of the importance of the
exchange, we quote it at length from the reporter’s transcript: “THE COURT:
Line 4, is this the gentleman who was recalcitrant this morning? Fredric Ferguson. Mr. Ferguson, good morning. The matter is on for arraignment following
your preliminary hearing. Is it still
your desire to represent yourself or would you like me to appoint an
attorney? [¶] DEFENDANT: Your Honor, I have some documents for the
court. [¶] THE COURT: Just answer my question. This is just the
arraignment. [¶] DEFENDANT: Ma’am, I am trying to answer it if you would
let me talk. [¶] THE COURT: It’s a yes or no. Did you want to continue to
represent yourself?
[¶] DEFENDANT: Ma’am, I am
trying my best, but right now my life is in danger, and the court is not paying
any attention to what I’m trying to explain.
[¶] THE COURT: Would you
like me to appoint an attorney to represent you? [¶] DEFENDANT: Well, I have a motion to dismiss and a
complaint. [¶] THE COURT: Would you like me to appoint an attorney to
represent you, sir, or would you like to represent yourself? [¶] DEFENDANT: No, ma’am. I would like my motion responded
to. I sent it to the court. [¶] THE
COURT: Today is not a date for motions,
Mr. Ferguson.
[¶] DEFENDANT: Today is the
date to railroad people, is that what you saying then? Because the court hasn’t listened to me since
I have been here. [¶] THE
COURT: All I need is an answer to this
question. Would you like me to appoint
an attorney to represent you?
[¶] DEFENDANT: No, ma’am. I
do not want anyone to send me to prison.
[¶] THE COURT: Did you want
to represent yourself in this matter?
[¶] DEFENDANT: Okay. Ma’am— [¶] THE COURT: Yes or no.
[¶] DEFENDANT: I have no answer for that, ma’am. [¶] THE COURT: I’m going to appoint the
Private Defender to represent Mr. Ferguson.
[¶] DEFENDANT: No. I will
not deal with a Private Defender. I have already told you that. It’s in my motion.
I have given you evidence, but the court is ignoring me. [¶] MS. JACOMB [PRIVATE DEFENDER]: In the lower court, he was granted Faretta status. [¶] THE COURT: I know that. I just asked him if he wanted to
represent himself and he said I have no
answer for that.
[¶] DEFENDANT: Okay, ma’am,
because you won’t let me say anything.
[¶] MS. JACOMB: Mr.
Ferguson, this is your arraignment. The only thing that happens at arraignment
is you find out who your lawyer is going to be and enter your plea and set
dates for everything else. You don’t argue motions now. [¶] (Talking over each other.) [¶] THE COURT: One more person yells in this courtroom and
that person gets removed. Do I make myself perfectly clear? [¶] DEFENDANT: Yes.
[¶] MS. JACOMB: Mr. Ferguson,
do you want the Private Defender to represent you? [¶] DEFENDANT: I am pro per.
[¶] THE COURT: Okay. That
was my question. Do you want to continue to represent yourself? [¶] DEFENDANT: Okay.
Would the court accept a motion to dismiss?
[¶] MS. JACOMB: Not
today. [¶] THE COURT: Not today.
[¶] MS. JACOMB: We have
to set a date for that. You enter your plea and you set dates. [¶] DEFENDANT: Okay. [¶] THE COURT: Ms. Jacomb, I am appointing the Private
Defender today to handle the arraignment, and should he seek to represent
himself, he is entitled to do that. I’m not comfortable with a finding that he
is capable of handling the arraignment today. He will have an attorney to
represent him today for the arraignment.
Ms. Jacomb— [¶] MS. JACOMB: Mr. Ferguson, we are actually trying to
protect your rights.
[¶] DEFENDANT: No, you are
not protecting me. You got custody status.
[¶] THE COURT: Mr. Ferguson,
please don’t interrupt. [¶] MS.
JACOMB: I am making a 1367, 1368
motion. I don’t believe Mr. Ferguson is
able to assist himself or anybody else in presenting a proper defense. [¶] THE COURT: All right.
We will then suspend criminal proceedings. I will appoint two doctors to
evaluate Mr. Ferguson. I will appoint
Dr. Howard Fenn. His phone number is . . ..
[¶] DEFENDANT: Okay. I still have a right to a speedy trial, and
that’s what I’m asking for. I have a
right to refuse. I will not talk to none
of your set of doctors. [¶] THE
COURT: He can be removed. [¶] DEFENDANT: You should have left me in there anyway. This here is like the 1950’s. Gonna tell me some shit like that.†(Italics added.) The court appointed the second doctor and
continued the matter for receipt of the doctors’ reports.
Setting of the competency hearing
On
January 28, 2011, attorney O’Brien appeared for Ferguson, over his
objection. Judge Novak noted that
Ferguson had refused to meet with either doctor. The court then set the matter
for a competency hearing, with agreement of defense counsel. Ferguson asked why the court was “forcing an
attorney†on him, and the court explained that, because a doubt was expressed
as to his competency, he had to have an attorney for the competency
proceedings. He would again be able to
represent himself, the court added, if he were found competent. The court further observed that Ferguson
“presented such difficulty every time†he appeared in court that she
“underst[oo]d†and “concur[red] with the suspension of the criminal proceedings.†Ferguson asserted that the “attorneys was [
from responding to [his] three motions.â€
Finding of competency and grant of
Faretta motion to self-represent
After
a continuance, the competency hearing took place on April 4, 2011. Ferguson testified. The court (Judge Parsons) found Ferguson
competent to stand trial and reinstated criminal proceedings. Judge Parsons also granted Ferguson’s motion
to represent himself. (Faretta, supra, 422
U.S. 806.) Ferguson entered a plea of
not guilty and denied the prior-conviction allegations.
Ferguson’s motion to dismiss on
speedy trial grounds
In
May 2011, Ferguson filed a motion to dismiss the case on speedy-trial
grounds. The motion – over 20
handwritten pages stating various rights, deprivations, and accusations –
included a citation to the Sixth Amendment right to a speedy trial and the
The
trial court denied the dismissal motion on May 20, 2011. Again, for clarity we set forth in full
detail the court’s basis for its ruling:
“Mr. Ferguson, in trying to diffuse what is contained within your
motion, it is a perfect example as to the risks defendants take when they elect
to represent themselves. Although the
Constitution certainly provides you that opportunity, your motion has been
described by research attorneys who have reviewed it as lengthy and at times
incoherent. The arguments that you raise
in your motion are very difficult to decipher, and it is not the role of the
court to play a guessing game simply because you choose to represent
yourself. [¶] But what I have
opined is that the legal tenor of your motion is that this case should be
dismissed because your speedy trial rights have been denied by virtue of the
fact that your trial has not occurred within 60 days of your arraignment. I think it is important to set forth a
chronology of what has happened in this case since the date of your
arraignment. [¶] First and
foremost, the charges stem from an offense that—a complaint was filed on November
4th, 2010. The defendant had a
preliminary hearing. He was held to
answer at that preliminary hearing. He
appeared in this department on December 7, 2010, for arraignment. The court declared a doubt pursuant to
1368—1367, 68 of the Penal Code.
[¶] As required, although the defendant was pro per, those
proceedings required an attorney to represent a defendant for whom a doubt has
been declared. The Private Defender was
appointed. Ms. O’Brien was designated the attorney at that time. [¶] On April 4th, 2011, a competency
hearing was held before Judge Parsons, and the court found that the defendant
was competent to stand trial. At the time of the defendant’s arraignment on
December 7, the 60 day window in which statutorily, and it is a statutory requirement
that the trial must be set, was essentially tolled and did not begin to run
because criminal proceedings were suspended on the court’s declaration of a
doubt as to your competency, Mr. Ferguson.
[¶] And the criminal proceedings remained suspended until April 4
when Judge Parsons found that you were competent to proceed to trial. [¶] On that date, the matter was set on
a time not waived basis, and, again, that requires the setting within the
statutory time limit of 60 days, and your trial is set for Monday, May 23rd,
which is well within the 60 day time frame.
[¶] So because of those reasons, there is no legal basis to grant
the speedy trial motion that you have filed seeking to have the matter dismissed.†The court also addressed other contentions in
Ferguson’s motion, finding none of them to warrant dismissal. (None of the other contentions in Ferguson’s
motion are at issue in this appeal.)
Ferguson
then argued that defense counsel had been forced on him and that counsel
“conspired and attempted to have defendant ruled incompetent to stand trial,â€
even though “[d]efendant was able to understand the nature of the proceedings,
and defendant could have allegedly
assist[ed] in the alleged conduct of [the] defense in a rational manner if
defendant had chosen,†although he chose not to because of his “irreconcilable
differences with the Private Defender office.â€
Although he had “never waived time,†several months had passed and he
still had not been tried, and the competency proceeding “must not be a factor
because criminal proceedings should not have been suspended.†Judge Novak acknowledged: “You have made a very clear record here this
morning.â€
2. Issue
One: Denial of Self-Representation
Ferguson
contends he was denied his right to represent himself beginning at the
arraignment on December 7, 2010, and continuing through April 6, 2011, after
his Faretta request was granted.
In
criminal proceedings, the right to counsel is guaranteed at an arraignment, as
well as at the preliminary hearing and trial.
(People v. Cummings (1967)
255 Cal.App.2d 341, 345.) On the other
hand, criminal defendants have a due process right to represent
themselves. (Faretta, supra, 422 U.S. 806.)
To invoke the Faretta right of
self-representation, however, a defendant must do so unequivocally. (People
v. Clark (1992) 3 Cal.4th 41, 98.) Furthermore, self-representation may be
denied to a defendant who is not competent to represent himself, even if he is
competent to stand trial. (Indiana v. Edwards (2008)
554 U.S. 164, 177-178 (Edwards)
[federal Constitution permits denial of self-representation to criminal
defendants not competent to represent themselves due to severe mental illness,
even if they are competent to stand trial]; People
v. Johnson (2012) 53 Cal.4th 519, 531 [California court may deny
self-representation in the situation where Edwards
permitted such a denial].)
If
a defendant has previously waived his right to counsel after being brought
before a magistrate and advised of the filing of a criminal complaint, the
trial court is required by Penal Code section 987 to readvise the defendant of
his right to counsel when the defendant is arraigned in superior court on the
information and to secure another waiver of the defendant’s right to counsel. (People
v. Crayton (2002) 28 Cal.4th 346, 360-361.)
Here,
Judge Novak asked Ferguson at his arraignment if he wanted counsel. (Pen. Code, § 987, subd. (a).) While Ferguson now argues that he made it
“perfectly clear that he refused to be represented by the Private Defender
program and wished to represent himself,†the record does not show an
unequivocal invocation of his right of self-representation, or a clear waiver
of his right to counsel.
The
first four or so times Judge Novak asked Ferguson whether he wanted counsel
appointed to represent him or wanted to represent himself, Ferguson did not
respond to the question with any direct answer.
When the court asked Ferguson for a fifth time, “Would you like me to appoint
an attorney to represent you, sir, or would you like to represent yourself?â€,
Ferguson answered equivocally, “No, ma’am. I would like my motion responded
to. I sent it to the court.†Ferguson then told the court he did not want
an attorney appointed to represent him, but when the court followed up by
asking if he wanted to represent himself, Ferguson said, “I have
the Private Defender to represent him, Ferguson said he would not deal with the
Private Defender and began talking over the court and, apparently,
yelling. When attorney Jacomb asked him
if he wanted the Private Defender to represent him, he said “I am pro per;†but
when the court promptly asked, “Do you want to continue to represent yourself,â€
Ferguson did not say “yes†or “no,†but instead replied equivocally: “Okay.
Would the court accept a motion to dismiss?†It is not clear whether “[o]kay†meant “yesâ€
to the court’s question or was instead tied to (or conditioned upon) his
request to submit a motion to dismiss.
Certainly the court – who observed Ferguson firsthand – was not
satisfied with his answers, as it promptly appointed the Private Defender to
represent Ferguson for the arraignment.
Based
on the record, it was reasonable for the court to conclude that Ferguson had
not unequivocally invoked his right to self-representation or waived his right
to counsel. The court then acted to
protect Ferguson’s right to counsel – at least at his arraignment – by “appointing
the Private Defender today to handle the arraignment. . . . He will have an
attorney to represent him today for the arraignment.â€
Ferguson
contends the court could have tried to determine if he suffered from a severe
mental illness that rendered him incompetent to represent himself, and it erred
by revoking his right of self-representation without such evidence. His argument is unpersuasive. In the first place, self-representation may
be denied if there is no unequivocal invocation of the right, whether the
defendant is incompetent to represent himself or not. Furthermore, in our view the court’s
appointment of counsel at the arraignment served to preserve Ferguson’s rights
and protect his interests in case he was
incompetent to represent himself:
indeed, Ferguson’s inability to understand the nature of the arraignment
and respond to the court’s questions – or his refusal to abide by the nature of
the arraignment and respond to the court’s questions – suggested a possible
incompetence that could be examined by the appointed counsel. As the court observed, it was “not
comfortable with a finding that [Ferguson] is capable of handling the
arraignment today.†In any event,
Ferguson’s inability or refusal to state directly and unequivocally that he wanted
to represent himself, precludes a finding of judicial error.
3. Issue
Two: Order for Competency Proceedings
Ferguson
next contends he was required to undergo a competency proceeding without
evidence sufficient for the court to order one.
As a result, he urges, the competency determination should not toll the
period for a speedy trial.
Trial
of an incompetent defendant violates the due process clause of the Fourteenth
Amendment to the United States Constitution and article I, section 15 of the
California Constitution. (People v. Hayes (1999)
21 Cal.4th 1211, 1281.) Accordingly,
Penal Code section 1367 provides: “A
person cannot be tried or adjudged to punishment while that person is mentally
incompetent. A defendant is mentally
incompetent for purposes of this chapter if, as a result of a mental disorder
or developmental disability, the defendant is unable to understand the nature
of the criminal proceedings or to assist counsel in the conduct of a defense in
a rational manner.†(§ 1367, subd. (a);
see Cooper v. Oklahoma (1996)
517 U.S. 348, 354 [under the federal Constitution, a criminal defendant may not
be tried unless he or she has an adequate ability to consult with counsel and a
rational and factual understanding of the proceedings].)
Section
1368 sets forth the procedure for ordering competency proceedings. The statute provides in part: “If, during the pendency of an action and
prior to judgment, a doubt arises in the mind of the judge as to the mental
competence of the defendant, he or she shall state that doubt in the record and
inquire of the attorney for the defendant whether, in the opinion of the
attorney, the defendant is mentally competent.
If the defendant is not represented by counsel, the court shall appoint
counsel. At the request of the defendant
or his or her counsel or upon its own motion, the court shall recess the
proceedings for as long as may be reasonably necessary to permit counsel to
confer with the defendant and to form an opinion as to the mental competence of
the defendant at that point in time.†(§
1368, subd. (a).)
Section
1368, subdivision (b) advises how to proceed if defense counsel tells the court
that the defendant may be mentally incompetent:
“If counsel informs the court that he or she believes the defendant is
or may be mentally incompetent, the court shall order that the question of the
defendant’s mental competence is to be determined in a hearing which is held
pursuant to Sections 1368.1 and 1369.â€
In
the matter before us, it is unclear whether the court actually expressed a
doubt, within the meaning of section 1368, as to Ferguson’s competence to stand
trial at the arraignment. Judge Novak
did not explicitly declare such a doubt.
Instead, she stated at the arraignment that she was “not comfortable
with a finding that [Ferguson] is capable of handling the arraignment today,â€
which seems to pertain more to Ferguson’s competence to represent himself (in tandem with his failure to state
unequivocally that he wanted to represent himself) than his competence to be
But the court might well have been thinking along those lines: the court immediately suspended criminal
proceedings once the Private Defender indicated a doubt as to Ferguson’s
ability to assist in his defense and moved for a competency hearing; and at the
ensuing January 28 hearing, Judge Novak “concur[red]†with the suspension of
criminal proceedings at the arraignment.
Furthermore, at the hearing on the motion to dismiss in May 2011, Judge
Novak stated that “the court [had]
declared a doubt pursuant to 1368 – 1367-68 of the Penal Code†at the
arraignment and the “criminal proceedings were suspended on the
[Ferguson’s] competency.†(Italics
added.)
Even
if the court did not state a doubt as to Ferguson’s mental competence at the
arraignment, once defense counsel expressed doubt in Ferguson’s competence by
“making a 1367, 1368 motion†because she did not “believe Mr. Ferguson [was]
able to assist himself or anybody else in presenting a proper defense,†the
court had the authority to “recess the proceedings for as long as may be
reasonably necessary to permit counsel to confer with the defendant and to form
an opinion as to the mental competence of the defendant at that point in
time.†(§ 1368, subd. (a).) The court also had authority to order a
competency hearing. (§ 1368, subd.
(b).)
Ferguson
argues that more than bizarre actions or statements by a defendant, or
statements by defense counsel that the defendant is incapable of cooperating in
his defense, are necessary to constitute substantial evidence of incompetency,
such that a section 1368 hearing is mandatory.
(People v.
430-431; see also People v. Johnson
(1978) 77 Cal.App.3d 866, 870-871 [a finding of incompetency solely on evidence
of a defendant’s refusal to cooperate is unwarranted].) It is true that a section 1368 hearing is
evidence of present mental incompetence.
(E.g., People v.
evidence of insanity or incompetence, the trial court still
grant such a hearing during the course of a trial.†(People
v. Boyd (1971) 16 Cal.App.3d 901, 907;
518; People v. Stiltner (1982)
132 Cal.App.3d 216, 222-223.)
Here,
the court did not abuse its discretion in this regard. Although Ferguson contends there was no
evidence that he suffered from a mental condition rendering him incapable of
understanding the proceedings or assisting in his defense, there was indeed
such evidence. Ferguson refused to give
a direct answer to most of the court’s questions, believed that his life was
“in danger,†stated that the court was trying to “railroad†him by not hearing
his motions when he wanted to bring them, talked over and yelled at the court,
and never seemed able to comprehend that the proceeding at which he was
appearing was for the purpose of entering a plea and determining whether he
wanted an attorney rather than submitting motions. (See People
v. Danielson (1992) 3 Cal.4th 691, 727 [“‘An
appellate court is in no position to appraise a defendant’s conduct in the
trial court as indicating insanity, a calculated attempt to feign insanity and
delay the proceedings, or sheer temper’â€], overruled on another ground in
Cal.4th 1046, 1069, fn. 13.)
The
trial court did not abuse its discretion in suspending the criminal proceedings
to determine Ferguson’s mental competence under section 1368.
4. Issue
Three: Speedy Trial
Ferguson
contends he was denied his statutory right to be tried within 60 days of
arraignment and denied his constitutional right to a speedy trial. (§ 1382, subd. (a)(2).) He points out that he refused to waive time
for trial, was arraigned on December 7, 2010, and was therefore entitled to
commencement of trial no later than February 7, 2011, but trial did not begin
until May 31, 2011.
A
trial may be delayed beyond the statutory limits if there is “good cause.†(§ 1382.) Ferguson contends there was no good cause to
extend the time limit, because the delay was the result of two void
orders: the denial of Ferguson’s right
to represent himself, and the institution of competency proceedings under
section 1368.
For
reasons stated ante, we find no error
in the appointment of counsel at the arraignment and in the institution of
competency proceedings. The competency
proceedings provided good cause for the delay in bringing Ferguson to trial and
tolled the period for trial to commence.
Neither the failure to bring Ferguson to trial by February 7, 2011, nor
the resulting additional days of incarceration before trial compel reversal.
B. Suppression
Motion
Ferguson’s
other major contention is that the police had no lawful basis for stopping his
car, and if the police had not stopped his car they would not have found the
rocks of cocaine and narcotics paraphernalia.
Therefore, Ferguson argues, his motion to suppress evidence should have
been granted and his conviction should now be reversed.
1. Law
A
temporary detention of a motorist during a traffic stop by police constitutes a
seizure within the meaning of the Fourth Amendment. (Whren
v. United States (1996) 517 U.S. 806, 809-810.) The stop is constitutionally permissible if
the officer has a “reasonable suspicion that the driver has violated the law;â€
but the “officer’s suspicion must be supported by some specific, articulable
facts that are ‘reasonably “consistent with criminal
activity.†’ †(People v. Wells (2006)
38 Cal.4th 1078, 1082-1083.)
2. Evidence
On
November 4, 2011, East Palo Alto Police Officer Alcaraz was on patrol around
1:23 a.m., in full uniform and in a marked police vehicle. He proceeded eastbound on Euclid Avenue
toward Bell Street. At a stop light (or
sign), he heard loud music coming from a car in front of his vehicle. The car turned right onto Bell Street. Alcaraz stopped his vehicle at the stop sign
and let the car go on. When the car was
“three houses past the intersection,†“midway†down Bell Street, the officer
could still hear the music “coming from†the car. Alcaraz estimated that, at this point, the
car was more than 50 feet away from him – “probably about 80 to a hundred
feet.†Alcaraz therefore believed that
there was a violation of the Vehicle Code “for having excessive music.†(See Veh. Code, § 27007.)
Officer
Alcaraz made a right turn onto Bell Street, caught up with the car and, at the
intersection with University Avenue, activated his emergency lights in order to
initiate a traffic stop. The car stopped
in the middle of University Avenue.
Alcaraz then “got on [his] loudspeaker and told the driver to pull over
to the side of the road,†and the driver complied. Alcaraz noted that the driver appeared to be
rocking from one side to the other.
Officer
Alcaraz made contact with the driver (identified to be Ferguson) at the car’s
driver-side window. Alcaraz asked
Ferguson for his driver’s license and related paperwork. According to the officer: “During my initial contact and speaking with
[Ferguson] at the driver’s side window, I first noticed that his complexion
appeared to be sweaty, while we spoke, he was very fidgety with his arms and
hands. What I mean by fidgety, it seemed
that he was unable to sit still as he is now, and he was moving his arms back
and forth constantly.†Ferguson handed
Alcaraz his driver’s license and began looking around his vehicle for the other
documents. Eventually Ferguson told
Alcaraz that he had just purchased the car and did not have any paperwork for
it.
Because
Ferguson remained “fidgety,†Officer Alcaraz asked him if he used narcotics
recently. Ferguson responded that he had
smoked crack a day earlier. Alcaraz
asked Ferguson follow-up questions and concluded, based on his experience, that
Ferguson was under the influence of a controlled substance.
Officer
Alcaraz placed Ferguson under
arrest. Alcaraz told Ferguson why he was
under arrest and that he intended to give Ferguson more tests. Ferguson became “very upset, very vocal and
started yelling obscenities†at Alcaraz and the other officers who had arrived
at the scene.
Officer
Alcaraz informed Ferguson that the police would have to tow his vehicle. Ferguson asked if the officers would contact
his father to get the car; Alcaraz used Ferguson’s cell phone to call
Ferguson’s father and learned that the father would not pick up Ferguson’s
vehicle.
Officer
Alcaraz then conducted a “tow inventory†search of the car. During the search, in the driver-side door
pocket, the officer found a wadded-up dollar bill; inside the bill were three
white rocks that he suspected to be cocaine base. Alcaraz also found two glass pipes inside the
car, underneath the hand brake.
On
cross-examination, Ferguson asked Officer Alcaraz why he did not issue a
citation for the Vehicle Code violation, and Alcaraz replied, “because I
arrested you.â€
Ferguson
testified that he had not played music “too loud,†although he did have his
radio on with the windows down. He
claimed the officer’s stopping him with bright lights made him afraid that
someone was after him, and he did not know about the cocaine and pipes found in
his car.
3. Analysis
Vehicle
Code section 27007 provides: “No driver
of a vehicle shall operate, or permit the operation of, any
heard outside the vehicle from 50 or more feet when the vehicle is being
operated upon a highway, unless that system is being operated to request
assistance or warn of a hazardous situation.
[¶] This section does not apply to authorized emergency vehicles or
vehicles operated by gas, electric, communications, or water utilities. This section does not apply to the sound
systems of vehicles used for advertising, or in parades, political or other
special events, except that the use of sound systems on those vehicles may be
prohibited by a local authority by ordinance or resolution.â€
Officer
Alcaraz had a reasonable suspicion sufficient to stop Ferguson’s car and detain
him for a potential violation of Vehicle Code section 27007. Because he heard music coming from Ferguson’s
vehicle from more than 50 feet away, it was reasonable for him to suspect that
the music might be coming from a sound amplification system in violation of the
statute. He was therefore entitled to
proceed to stop the vehicle and investigate.
Ferguson
argues that, as a matter of law, Officer Alcaraz had no reasonable suspicion to
stop his car because a “sound amplification system†within the meaning of
Vehicle Code section 27007 pertains only to sound systems mounted outside a
car, not a car radio or stereo inside the car.
He asserts: “On its face,
[Vehicle Code] section 27007 does not regulate the noise made by a car radio or
car stereo intended to be used for the entertainment of the occupants of the
vehicle. It was clearly intended to
regulate the use of external sound
systems mounted on a vehicle, such as those sometimes used in parades or
political rallies, and to allow local authorities to regulate such uses.†(Italics added.)
The
plain language of Vehicle Code section 27007, however, is that it pertains to “
be heard outside the vehicle from 50 or more feet.†(Italics added.) The statute does not limit sound
amplification systems to those externally mounted; to the contrary, as
respondent asserts, “sound amplification system†seems to include a radio or
stereo located inside a car, as long as it is heard outside.
In
any event, while the parties argue at length about the language and legislative
history of the statute, we need not consider further the precise meaning of
“sound amplification system†since, even if it means what Ferguson now claims
it means, Officer Alvaraz had a reasonable suspicion to stop Ferguson’s vehicle
in order to investigate whether the statute was violated.
The
legal principle underlying Ferguson’s argument is that an officer does not have
probable cause to stop a vehicle if the facts perceived by the officer do not
constitute a violation as a matter of law, regardless of the officer’s
subjective belief that they do. (
636, 641, 643-644 [officer’s mistaken belief that the location of an air
freshener and the absence of a license plate violated the Vehicle Code was
insufficient to justify stop of vehicle]; see In re Justin K. (2002) 98 Cal.App.4th 695, 700; cf.
213 F.3d 1216, 1217, 1220-1221 [probable cause did exist for the stop of a
vehicle, where the officer was correct in his belief that the car’s window
tinting was illegal, even though he was wrong about why].)
In
the matter before us, however, we do not have a situation where the facts on
which Officer Alvaraz relied could not constitute a violation as a
Ferguson’s car because he could hear loud music “coming from [Ferguson’s]
vehicle†from over 50 feet away. Those
facts could be the basis of a
violation of Vehicle Code section 27007.
Nothing in those facts precluded a violation of Vehicle Code section
27007, and there was no other evidence at trial that precluded a violation of
Vehicle Code section 27007 either, even if (as Ferguson now claims) the statute
applies only to external amplification systems:
for example, Alvaraz did not testify that the music was coming
specifically from inside Ferguson’s
vehicle, or that he knew Ferguson’s vehicle did not have an external amplification system. Simply put, the facts known to the officer
indicated that Ferguson may be
involved in unlawful activity, and that is all that was needed to stop the
car. (People v. Hernandez (2008) 45 Cal.4th 295, 299; see
57, 62-63 [traffic stops are investigatory detentions that need only be
supported by suspicion of a Vehicle Code violation or criminal activity] (
is not whether [the defendant] actually
violated the statute. Rather, the issue
was if some ‘objective manifestation’ that the person may have committed such an error was present. [Citation.]â€].)
Similarly,
there is no evidence that Ferguson did not in fact violate Vehicle Code section
27007 even if, as Ferguson claims, the statute pertains only to external sound
amplification systems. Although Ferguson
said at trial that his radio was on and his window was down, there was no
evidence that he did not have an external speaker. And the reason Officer Alvaraz did not cite
Ferguson for the Vehicle Code violation was because he arrested Ferguson on the
drug charges, not because Ferguson was innocent of the Vehicle Code charge.
In
the final analysis, Ferguson fails to establish that he was detained without a
reasonable suspicion that he had violated Vehicle Code section 27007. There is no dispute that he was then lawfully
arrested on probable cause for being under the influence of narcotics, that the
officer was then entitled to search for evidence of the crime, or that the
officer was in any event entitled to have the vehicle towed and conduct an
inventory search. Accordingly, Ferguson
has not demonstrated error in the denial of his motion to suppress, or the
admission of the evidence against him.
III. DISPOSITION
The
judgment is affirmed.
NEEDHAM,
J.
We concur.
SIMONS, Acting P.
J.
BRUINIERS, J.
challenges pre-trial rulings only, we do not set forth the evidence underlying
his conviction. There is no dispute that
substantial evidence supported the jury’s verdict.
date for the competency hearing, Ferguson asked, “Why don’t you take me out and
hang me, man;†when the court explained
that his attorney needed adequate time to prepare for the competency hearing,
Ferguson replied, “Oh, to make up some stuff to stick on a brother.â€
