P. v. Johnson

 

 

 

 

Filed 1/29/14 
P. v. Johnson CA5

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   MELVIN JOHNSON,   Defendant and Appellant.

F065152   (Super. Ct. No. 1409527)     >OPINION

 

            APPEAL
from a judgment of the Superior Court of
Stanislaus County.  Thomas D.
Zeff, Judge.

            Cheryl
Rae Anderson, under appointment by the Court
of Appeal, for Defendant and Appellant.

            Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys
General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

            Appellant
Melvin Johnson pled no contest to possession of methamphetamine and was placed on
probation for three years. (Health &
Saf. Code, § 11377, subd. (a).) 
He challenges the denial of a suppression motion and asserts that
knowledge requirements must be added to drug- and alcohol-related probation
conditions.  We agree that the alcohol-related
condition must be modified but uphold the language of the drug-related
condition and denial of the suppression
motion.  The probation conditions
will be amended and, as so modified, the judgment will be affirmed.   

FACTS

            On
August 19, 2009, Modesto Police Officer John Carricohref="#_ftn1" name="_ftnref1" title="">^[1] contacted appellant and
searched his person.  A baggie containing
a crystalline substance was found inside the right front coin pocket of
appellant’s pants.  Carrico asked
appellant about the substance and appellant said, “that it was methamphetamine
and that he uses it to put it in his coffee to help him stay awake.”  The substance was tested and determined to be
0.58 grams of methamphetamine, which is a useable amount.

DISCUSSION

>I.          The Suppression Motion Was Properly Denied.

>            A.        Facts.

            Appellant
filed a written motion to suppress evidence, arguing that the search was the
product of an illegal detention.  The
motion was heard on September 6, 2011. 

            Carrico
testified that he was on patrol during the night of August 19, 2009.  At approximately 3:45 a.m., he drove through
the parking lot of the Knight’s Inn in Modesto to “see who was out there, see
what was going on.”  The Knight’s Inn is
located in “a high-drug sale area, lots of crime.”  Appellant “was just kind of hanging around a
truck parked in the middle of the parking lot.”  Carrico parked his patrol vehicle about 15 to
20 feet away from appellant, with the vehicle’s headlights shining in appellant’s
direction.     

            Carrico
approached appellant and began conversing with him.  Appellant was “very cooperative” throughout
their encounter.  Carrico asked appellant
what he was doing in the area.  Appellant
said that “he had just gotten off work and he had dropped some of his friends
off at the hotel room and that he was taking their trash out for them.”  Carrico asked appellant why he was “still
hanging out in the parking lot” since he had already taken the trash out.  Then he asked if appellant “was there to buy
any kind of drugs.”  Appellant “said that
he wasn’t there to buy drugs.”  Carrico
asked appellant if he was on probation or parole.  Appellant said “that he was on parole for a
domestic violence.”  Carrico “confirmed
with him, again, that he was on parole.”  Carrico asked appellant if he had ever been to
prison and appellant replied that he had not. 
Carrico asked appellant “if he had any drugs or anything illegal with
him.”  Appellant said that he did
not.  Carrico asked appellant if he could
search him to “check and make sure he didn’t have any drugs.”  Appellant “told me I could.”  Carrico found a small plastic baggie
containing a crystal substance in the right front coin pocket of appellant’s
pants.  Carrico ran a “dispatch check”
and was informed that appellant was not on probation or parole.  Carrico asked appellant a third time about
his parole status.  Appellant “still told me he was on parole.”  Carrico did not inform appellant that he was
free to leave at any point during the encounter.  

            Appellant
testified that he parked his truck in a Denny’s parking lot and was sitting in
the driver’s seat when Carrico and another officer approached him.  Carrico asked, “Whose truck is this?”  Appellant replied, “It’s mine.”  Carrico ordered appellant to step out of the
vehicle.  Appellant asked, “What for?”  Carrico again told appellant to get out of the
truck.  When appellant complied,
Carrico  immediately grabbed one of  his arms and handcuffed him.  Carrico asked, “[W]hat room were they selling
drugs out of[?]”  Carrico searched
appellant and then he searched the truck. 
Carrico did not ask for or receive permission to conduct these searches.  Appellant asked the officer to loosen the
handcuffs because his arms were hurting. 
Carrico refused and told appellant to remain standing by the front of
the truck.  Carrico called dispatch.  At some point during the encounter, Carrico
asked appellant if he was on probation or parole and appellant “told him I wasn’t.”


            The
trial court denied the suppression motion. 
It found: 

            “This
case boiled down to an issue of credibility, whether you believe Mr. Johnson or
whether you believe the police officer in question.         

            “Having
reviewed the transcript carefully again, the Court concludes that the officer’s
testimony is more credible and the Court denies the defendant’s motion to
suppress.”

            B.        The encounter was consensual and
appellant agreed to the search.

            “The
Fourth Amendment of the federal Constitution requires state and federal courts
to exclude evidence obtained from unreasonable government searches and
seizures.  [Citation.]  Penal Code section 1538.5 allows a defendant to
move to suppress evidence obtained in an improper seizure.  [Citation.]” 
(href="http://www.mcmillanlaw.us/">People v. Garry (2007) 156
Cal.App.4th 1100, 1105-1106.) 

            “An
appellate court’s review of a trial court’s ruling on a motion to suppress is
governed by well-settled principles. 
[Citations.] 

            “In
ruling on such a motion, the trial court (1) finds the historical facts, (2)
selects the applicable rule of law, and (3) applies the latter to the former to
determine whether the rule of law as applied to the established facts is or is
not violated.  [Citations.]  ‘The [trial] court’s resolution of each of
these inquiries is, of course, subject to appellate review.’  [Citations.] 


            “The
court’s resolution of the first inquiry, which involves questions of fact, is
reviewed under the deferential substantial-evidence standard.  [Citations.] 
Its decision on the second, which is a pure question of law, is
scrutinized under the standard of independent review.  [Citations.] 
Finally, its ruling on the third, which is a mixed fact-law question
that is however predominately one of law, viz., the reasonableness of the
challenged police conduct, is also subject to independent review.  [Citations.] 
The reason is plain:  ‘it is “the
ultimate responsibility of the appellate court to measure the facts, as found
by the trier, against the constitutional standard of reasonableness.”’  [Citation.]” 
(People v. Williams (1988) 45
Cal.3d 1268, 1301.)

            Appellant
argues that his encounter with Carrico was not consensual and that he was
detained without reasonable suspicion. 
Appellant further contends that any statements he made about being on
parole or consenting to search were the product of the unlawful detention.  We are not convinced. 

“‘Consensual encounters do not trigger
Fourth Amendment scrutiny. 
[Citation.]  Unlike detentions, they
require no articulable suspicion that the person has committed or is about to commit
a crime.  [Citation.]  [¶] 
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 individual’s liberty, does a seizure occur.  [Citations.] 
“[I]n order to determine whether a particular encounter constitutes a
seizure, a court must consider all the circumstances surrounding the encounter
to determine whether the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers’ requests or
otherwise terminate the encounter.” 
[Citation.]  This test assesses
the coercive effect of police conduct as a whole, rather than emphasizing
particular details of that conduct in isolation.  [Citation.] 
Circumstances establishing a seizure might include any of the
following:  the presence of several
officers, an officer’s display of a weapon, some physical touching of the
person, or the use of language or of a tone of voice indicating that compliance
with the officer’s request might be compelled.’ 
[Citation.] 

            “The
test for the existence of a show of authority is an objective one and does not
take into account the perceptions of the particular person involved.  [Citation.] 
The test is ‘not whether the citizen perceived that he was being ordered
to restrict his movement, but whether the officer’s words and actions would
have conveyed this to a reasonable person.’ 
[Citation.]”  (>People v. Garry, supra, 156 Cal.App.4th
at p. 1006.) 

            Having
examined all the circumstances, we conclude that the encounter between
appellant and Carrico was consensual. 
The trial court found Carrico’s testimony to be credible and accepted it
over appellant’s testimony.  Witness
credibility is the exclusive province of the trial court hearing a suppression
motion and we defer to its credibility findings.  (People
v. Barnes (2013) 216 Cal.App.4th 1508, 1520; People v. Woods (1999) 21 Cal.4th 668, 673.)  Therefore, we accept Carrico’s testimony
about the encounter and give no weight to appellant’s competing version of
events.  Carrico’s testimony supports the
trial court’s conclusion that the encounter was consensual.  None of the circumstances establishing a
detention were present.  Carrico was the
only officer present.  He did not display
a weapon.  He did not touch
appellant.  His questions were not
particularly accusatory.  The totality of
the circumstances support the trial court’s determination that the contact
between appellant and Carrico was a consensual encounter.  “[A] consensual encounter between a police
officer and an individual does not implicate the Fourth Amendment.”  (People
v. Rivera (2007) 41 Cal.4th 304, 309.)    


            Carrico
asked for and received consent to search appellant’s person.  There is no constitutional impediment to an
officer asking for consent to search during the course of a consensual
encounter.  (People v. Rivera, supra, 41 Cal.4th at pp. 310-311.)  The record does not contain any evidence
suggesting that appellant’s consent to search was not voluntary.  Since appellant was not detained and he
consented to the search of his person, we uphold the trial court’s denial of
the suppression motion. 

II.        The
Drug-Related Probation Condition Contains an Implicit Knowledge Requirement But
the Alcohol-Related Probation Condition Must Be Modified to Add A knowledge
Requirement.

            The
trial court articulated some of the probation conditions during the sentencing
hearing, including the following:  “Do
not use or possess any narcotics, controlled substance, restricted or
prescription drugs, except with a valid prescription” (the drug-related
condition). 

            The
written probation order, which is signed by appellant, includes the following
condition:  “Do not use or possess any
alcoholic beverages or be in or about any place of business where the primary
item sold is alcoholic beverages for consumption on the premises” (the alcohol-related
condition).

            Appellant
contends these probation conditions are unconstitutionally vague because they
do not contain an express knowledge requirement.  Respondent argues that the drug-related
condition contains an implicit knowledge element but concedes that the alcohol-related
condition must be modified to add a knowledge requirement.  We agree with respondent on both points. 

            “Probation
conditions may be classified according to their purposes.  Some reinforce the requirements of penal
statutes the probationer may be especially at risk of violating.  Others are intended to keep the probationer
away from situations likely to lead to criminal conduct.  ‘[E]ven if a condition of probation has no
relationship to the crime of which a defendant was convicted and involves
conduct that is not itself criminal, the condition is valid as long as the
condition is reasonably related to preventing future criminality.’  [Citation.].” 
(People v. Rodriguez (2013) 222
Cal.App.4th 578, 590 (Rodriguez).)

            “Generally,
we review the court’s imposition of a probation condition for an abuse of
discretion.  [Citations.]  However, we review constitutional challenges
to a probation condition de novo. 
[Citation.]”  (>In re Shaun R. (2010) 188 Cal.App.4th
1129, 1143.)href="#_ftn2" name="_ftnref2"
title="">^[2] 

            “Probation
conditions are analyzed according to the same standards for determining whether
penal statutes are unconstitutionally vague, as discussed in [>In re Sheena K. (2007) 40 Cal.4th 875,
890 (Sheena K.)].”  (Rodriguez,
supra, 222 Cal.App.4th at p. 590.) 
The rule of fair warning is applied.

“… The rule of fair warning consists
of  ‘the due process concepts of
preventing arbitrary law enforcement and providing adequate notice to potential
offenders’ (ibid.), protections that
are ‘embodied in the due process clauses of the federal and California
Constitutions.  [Citations.]’  [Citation.] 
The vagueness doctrine bars enforcement of ‘“a statute which either
forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application.”  [Citations.]’  [Citation.]” 
(Sheena K., supra, 40 Cal.4th
at p. 890, quoted in Rodriguez, supra,
222 Cal.App.4th at p. 587.) 

            >Sheena K., supra, 40 Cal.4th 875, held that a probation condition forbidding
association with anyone disapproved of by probation was unconstitutionally
vague and must be modified to add an explicit knowledge requirement.  (Id.
at pp. 891-892.)  Subsequent cases
considering probation conditions prohibiting association with particular types
of people have concluded that an explicit or constructive knowledge element is
required to cure vagueness.  (See, e.g., >People v. Turner (2007) 155 Cal.App.4th
1432, 1436 [prohibition against associating with minors]; People v. Moses (2011) 199 Cal.App.4th 374, 381-382 [same]; >People v. Leon (2010) 181 Cal.App.4th
943, 950-951 [prohibition against association with gang-related persons and
wearing of gang-related symbols]; In re
Vincent G. (2008) 162 Cal.App.4th 238, 247-248 [same].)  Other cases have applied Sheena K. to require the presence of a knowledge element in
probation conditions restricting conduct that would otherwise be legal.  (See, e.g., People v. Pirali (2013) 217 Cal.App.4th 1341, 1351-1352 [internet
access]; People v. Turner, supra, 155
Cal.App.4th at pp. 1435-1438 [possession of sexually stimulating material].)

            Case
law has drawn a distinction with respect to probation conditions reinforcing
penal statutes that forbid possession of certain items that are already subject
to restriction.  For example, penal statutes
prohibiting possession of firearms, ammunition and deadly weapons contain
implicit knowledge elements.  Probation
conditions reinforcing these statutes by prohibiting possession of weapons “contains
those implicit scienter requirements, and due process does not require making
them explicit.”  (Rodriguez, supra, 222 Cal.App.4th at p. 591; see also >People v. Kim (2011) 193 Cal.App.4th
836, 843-847 (Kim)>; People v. Moore, supra, 211
Cal.App.4th at pp. 1183-1189.)  >Kim explained:  “[W]here a probation condition implements
statutory provisions that apply to the probationer independent of the condition
and does not infringe on a constitutional right, it is not necessary to include
in the condition an express scienter requirement that is necessarily implied in
the statute.”  (Kim, supra, 193 Cal.App.4th at p. 843.)  

            Recently,
in Rodriguez, supra, 222 Cal.App.4th 578,
the Sixth Appellate District applied this line of authority and held that a
probation condition prohibiting possession of narcotics or other controlled
substances without a prescription (condition 8) implicitly contains a knowledge
element. 

            “To
the extent condition 8 reinforces defendant’s obligations under the California’s
Uniform Controlled Substances Act, the same knowledge element which has been
found to be implicit in those statutes is reasonably implicit in the
condition.  What is implicit is that
possession of a controlled substance involves the mental elements of knowing of
its presence and of its nature as a restricted substance.”  (Rodriguez,
supra, 222 Cal.App.4th 593.) 

            Following
and applying Rodriguez, we similarly
conclude that a knowledge element is reasonably implicit in the drug-related
probation condition at issue here.  Due
process does not require modification of the condition to make this implicit
knowledge element explicit.

            We
reach the opposite conclusion with respect to the alcohol-related condition.href="#_ftn3" name="_ftnref3" title="">^[3]  Absent this probation
condition, it would not be illegal for appellant to consume an alcoholic
beverage in his home or a bar.  This
condition does not arise from or purport to implement any statutory
prohibition. Therefore, it is not possible to derive an implicit knowledge
element by interpreting parallel statutory language.  The prohibition against presence in a business
where alcohol is the “primary item sold” is analogous to prohibitions against
presence in places where minors associate (People
v. Turner, supra, 155 Cal.App.4th at p. 1436) or where firearms are located
(In re Victor L. (2010) 182
Cal.App.4th 902, 912-913).  Although a
trial court may not revoke a defendant’s probation absent proof of willfulness,
“this is cold comfort to a probationer who suffers from an unfounded arrest and
detention based on the whim or vengeance of an arbitrary or mean-spirited
probation officer.”  (>In re Victor L., supra, 182 Cal.App.4th at
p. 913 [modifying condition prohibiting presence where firearms exist to
include express knowledge requirement].) 
Consequently, we conclude that the alcohol-related condition must be
modified to add a knowledge requirement.href="#_ftn4" name="_ftnref4" title="">^[4]  

III.       Failure
to Orally Pronounce the Alcohol-Related Condition Does Not Render It Invalid. 

            Appellant’s
final contention, that the alcohol-related condition must be stricken because
it was not orally imposed during the sentencing hearing, is not
persuasive.  It is well established that
the trial court “need not orally pronounce probation conditions as long as the
defendant knows what is required.”  (>In Pedro Q. (1989) 209 Cal.App.3d 1368,
1373.)  It is sufficient for the
probations conditions to be set forth in detail in the probation order.  (In re
Frankie (1988) 198 Cal.App.3d 1149, 1154-1155.) 

DISPOSITION

            The
alcohol-related condition contained in the order of probation is modified to
provide:   “Do not knowingly use or
possess any alcoholic beverages or be in or about any place of business where
you know or reasonably should know that the primary item sold is alcoholic
beverages for consumption on the premises.” 
As so modified, the judgment is affirmed.  The superior court is directed to forward a
certified copy of the modified order of probation to the probation authorities
and the parties.

 

 

                                                                                                            _____________________

LEVY,
Acting P.J.

I CONCUR:

 

 

_____________________

POOCHIGIAN, J.

Detjen, J., concurring and dissenting:

I concur in the
majority opinion on all issues but one. 
I do not agree that the probation condition to “not use or possess any
alcoholic beverages or be in or about any place of business where the primary
item sold is alcoholic beverages for consumption on the premises,” is
unconstitutionally vague.

            “[T]he
underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’  [Citation.]  The rule of fair warning consists of ‘the due
process concepts of preventing arbitrary law enforcement and providing adequate
notice to potential offenders’ [citation], protections that are ‘embodied in
the due process clauses of the federal and California Constitutions.  [Citations.]’ 
[Citation.]  The vagueness
doctrine bars enforcement of ‘“a statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application.”  [Citation.]’ 
[Citation.]”  (>In re Sheena K. (2007) 40 Cal.4th 875,
890.)

Appellant Melvin
Johnson does not assert that the term “alcoholic beverages” or the location
“where the primary item sold is alcoholic beverages for consumption on the
premises” is so vague that persons of common intelligence would necessarily
guess at their meaning.  This is not
surprising as a person of common intelligence would know the prohibition
condition covered alcoholic beverages and bars. 
Instead, appellant argues the probation condition is unconstitutionally
vague because it lacks an “explicit knowledge requirement.”  Appellant does not, however, go on to explain
how the lack of an express knowledge modifier in the alcohol-related probation
condition creates unconstitutional vagueness.href="#_ftn5" name="_ftnref5" title="">^[5]

The majority
opinion found the alcohol-related probation condition unconstitutionally vague,
but did not find the drug-related probation condition unconstitutionally
vague.  In differentiating the two
conditions, the majority opinion points out the alcohol-related probation condition
“does not arise from or purport to implement any statutory prohibition.”  (Maj. opn. ante, at p. 9.)  I agree it
does not.  But, I disagree our analysis
should end there.href="#_ftn6"
name="_ftnref6" title="">^[6]

            A
violation of a condition of probation must be willful and knowing.  (People
v. Moore (2012) 211 Cal.App.4th 1179, 1188.)  “[A] trial court may not revoke probation
unless the defendant willfully violated the terms and conditions of probation.
[Citations.]”  (Id. at p. 1186.)  A
probationer cannot be punished for presence or possession without proof of
knowledge.  (Ibid.)  The addition of an
express knowledge requirement would add little or nothing to the probation
condition.  (Id. at p. 1188.)  In the
unlikely event appellant were to unknowingly consume an alcoholic beverage, or
unknowingly be in a place where the primary item sold is alcoholic beverages
for consumption on the premises, he would not be in violation of
probation. 

The majority
opinion cites to, and thereby joins in, the statement in In re Victor L. (2010) 182 Cal.App.4th 902, 913, that, without a
knowledge modifier, there is a risk appellant will “suffer[] from an unfounded
arrest and detention based on the whim or vengeance of an arbitrary or
mean-spirited probation officer.”  I do
not join in that statement.  First, there
is nothing in the record upon which to base such an expectation, nor is there a
reasonable matter of common knowledge to support the assertion that there is a
legitimate concern probation officers will be mean-spirited or will act on
whim, vengeance, or with arbitrariness. 
Second, whim, vengeance, and mean-spirited behavior are choices
motivated by wrongful intent.  I see no
basis to conclude a person prone to such behavior would be restrained by a
knowledge modifier. 

The challenged
alcohol-related condition is not unconstitutionally vague.   

 

 

_________________________

DETJEN, J.