P. v. Marino

Filed 8/25/08 P. v. Marino CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed.

Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, Marissa A. Bejarano and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant guilty of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)), and being a felon in possession of ammunition (Pen. Code, 12316, subd. (b)(1)).^[1] Defendant admitted suffering seven prior convictions for which he served prison terms. ( 667.5, subd. (b).) The court sentenced defendant to state prison for a term of nine years. Defendant contends the trial court erred by denying his motion to suppress evidence discovered during a search of his vehicle because defendant was illegally detained. Additionally, defendant contends that the prosecutor violated defendants constitutional rights to due process by (a) allowing a witness to offer perjured testimony at the suppression hearing; and (b) failing to disclose exculpatory evidence to the defense. We affirm the judgment.

FACTS

The following facts are taken from the testimony presented at the hearing on defendants motion to suppress evidence, as opposed to testimony presented at trial.

On April 30, 2006, at approximately midnight, Riverside City Police Officer Levesque was driving on Alessandro Boulevard when he observed a SUV parked along the side of the road. Officer Levesque stopped his vehicle parallel to the SUV, but two lanes away from the SUV. Defendant was in the drivers seat of the SUV speaking to an individual who was standing on a hill approximately 30 or 40 feet away. Officer Levesque asked defendant, Is everything okay? Defendant responded by informing Officer Levesque that he was running out of gas. The individual on the hill then ran towards a residential neighborhood. It was later revealed that the individual on the hill lived in the neighborhood. As Officer Levesque and defendant spoke, no other vehicles passed through the area. Defendant drove away.

As defendant drove away, Officer Levesques partner, Officer Derouin was approximately one-half mile away driving towards Officer Levesque and defendant, in a patrol car. Defendant drove straight, but then turned right into the same residential neighborhood where the individual on the hill had run. When defendant made the right turn, he failed to signal. Officer Levesque had begun driving by the time defendant turned right. Also as defendant turned right, Officer Derouin drove along the side of Officer Levesques patrol car. Officer Derouin overtook Officer Levesque, so that Officer Derouin was closer to defendant than Officer Levesque. Officer Derouin saw defendant fail to signal. When defendant failed to signal, the officers decided to stop defendant for the traffic violation.

Officer Levesque testified that a second reason for stopping defendant was that a gas station was straight down the road only about half a mile which made defendants decision to turn into the residential neighborhood suspicious, because defendant had claimed to need gas.

The officers followed defendant approximately one block after he failed to signal, and then activated their cars lights and sirens to initiate the traffic stop. Defendant drove for approximately two blocks before stopping the SUV. Officer Derouin approached the drivers side of the SUV, and Officer Levesque approached the passenger side of the vehicle. Officer Levesque shined his flashlight into the vehicle and observed a plastic box on the floorboard of the vehicle that he recognized as possibly containing ammunition. Defendant informed Officer Derouin that he was on parole. Officer Levesque instructed Officer Derouin to detain defendant, because he believed defendant might be armed.

After defendant was detained, Officer Levesque searched the SUV. Officer Levesque discovered ammunition and a handgun.

Defendants trial counsel argued the ammunition and handgun should be suppressed because (1) it is legal to turn without signaling if the turn does not affect another vehicle (Veh. Code, 22107), and there was no traffic at the time of the stop, so it was not reasonable to stop defendant for failing to signal; and (2) speaking to a person on a hill and turning into a residential neighborhood are not actions that give rise to reasonable suspicion of criminal activity.

The court denied defendants motion to suppress and gave the following reasons: Im not convinced that the defendant did commit a violation of Vehicle Code Section 22107. There was no traffic. I tell you, even at midnight Alessandro can be a busy street, but the officer testified that at that point in time specifically there was no traffic. And Im not sure that 22107 applies in that situation. [] But irrespective of that, I do believe the officer had independent, sufficient reasonable suspicion based upon the activity and the conduct. [] You know, and when you have a situation where someone is on the side of the road and in a somewhat remote area at midnight and then they tell you theyre . . . running out of gas . . . plus hes talking to someone else whos on the hillside, and then when the officer stops, the person on the hillside retreats or leaves, doesnt come down to the officers location or talk to them or engage them in conversation, he kind of runs away, and then the vehicle, rather than go a quarter mile down the street to the nearest gas station, makes a right into the same residential area where this individual on the hillside retreated, I think thats sufficient.

DISCUSSION

1.

TRAFFIC STOP

Defendant contends the trial court erred by denying his motion to suppress evidence. Specifically, defendant argues that Police Officers Levesque and Derouin illegally detained him, because the officers did not have a reasonable suspicion that defendant committed a traffic violation or that defendant was engaged in criminal activity at the time of the traffic stop. As a result, defendant argues the evidence discovered and seized during that illegal detention should have been suppressed. We disagree.

In reviewing the trial courts denial of defendants motion to suppress, [w]e defer to the trial courts factual findings, express or implied, where supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) [A]ll factual conflicts must be resolved in the manner most favorable to the [superior] courts disposition on the [suppression] motion. [Citation.] (People v. Woods (1999) 21 Cal.4th 668, 673-674.) In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser, supra, 11 Cal.4th at p. 362.)

The Fourth Amendment to the United States Constitution prohibits seizures of persons, including brief investigative detentions, when they are unreasonable. (People v. Souza (1994) 9 Cal.4th 224, 229.) In order to pass constitutional muster, a detention must be based on some objective manifestation that criminal activity is afoot and that the person to be stopped is engaged in that activity. (Id. at p. 230.) Thus, as specific to a vehicle stop, a police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law. (People v. Miranda (1993) 17 Cal.App.4th 917, 926.)

A. Reasonable Suspicion of Criminal Activity

We begin by addressing defendants argument that no reasonable officer could have believed defendant was engaged in criminal activity.

To justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to [a] crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity. [Citations.] This reasonable suspicion requirement is measured by an objective standard, not by the particular officers subjective state of mind at the time of the stop or detention. [Citations.] Accordingly, the circumstances known or apparent to the officer must be such as would cause a reasonable law enforcement officer in a like position, drawing when appropriate on his or her training and experience, to suspect that criminal activity has occurred, is occurring, or is about to occur and that the person to be stopped or detained is involved in the activity. [Citations.] The corollary to this rule is that an investigative stop or detention predicated on circumstances which, when viewed objectively, support a mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in good faith. [Citation.] (People v. Conway (1994) 25 Cal.App.4th 385, 388-389.)

Because the concept of reasonable suspicion is sometimes elusive, we reiterate the rules applicable to this case. In evaluating the validity of a stop . . . [a reviewing court] must consider the totality of the circumstancesthe whole picture. [Citation.] As [stated] in [United States v. Cortez (1981) 449 U.S. 411, 417]: [] The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the sameand so are law enforcement officers [Citation.] (United States v. Sokolow (1989) 490 U.S. 1, 8.)

The specific and articulable facts and circumstances known to Officer Levesque at the time of the stop were that defendant had been stopped on the side of a busy street in the middle of the night; defendant was speaking with a man on the side of a hill; when the officer spoke to defendant, the man ran away; and defendant informed the officer that he needed gas, but when defendant drove away, he turned off a busy street into the same residential neighborhood where the man on the hill had run.

An objective officer, surveying the foregoing facts and circumstances, would find defendants statement of needing gas contradictory to his action of turning into a residential neighborhood. Such a contradiction may not typically give rise to a reasonable suspicion; however, when examined with common sense and with knowledge of human behavior, and combined with the time of night, defendants action of speaking to the man on the hill, and defendants turn in the direction where the man on the hill had run, the facts are sufficient to raise a reasonable suspicion that some criminal behavior has occurred or is about to occur, because the contradiction is no longer a simple contradiction, but part of an escalating series of odd and contradictory behaviors and circumstances.

When reasonable suspicion is based on a series of events, such as in the instant case, it falls within the doctrine of escalating probable cause, where an entirely innocent encounter can provide increasing reasons and justification for detaining, questioning, and then seizing and searching. [Another such] case is People v. Warren (1984) 152 Cal.App.3d 991, where the officer, a fishing enthusiast, saw the defendant carrying a number of fishing poles and other fishing tackle around Fifth and Main Streets in downtown Los Angeles. The defendants strange and inaccurate replies, plus other indicia, provided the basis of promoting a social conversation into an investigative stop, then to a detention, and, finally, to a search and arrest. (People v. Lusardi (1991) 228 Cal.App.3d Supp. 1, 4.)

Defendants actions, in the present case, do not provide a clear indication of exactly what type of criminal activity may have been afoot; however, an officer does not need to know the particular crime with which a defendant may be involved. As the Supreme Court explained in People v. Leyba (1981) 29 Cal.3d 591, 599: The very notion that an ambiguity exists and requires resolution implies that an officer will not on each occasion view and be able to [articulate] exactly what [criminal activity] is occurring. Moreover, [the] possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegalto enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges. [Citation.] [Citations.] (People v. Warren, supra, 152 Cal.App.3d at p. 997.)

Under the totality of the circumstances, we conclude that Officer Levesque knew facts which, viewed objectively, would cause a reasonable officer to suspect that criminal activity was afoot so as to justify detaining defendant for the purpose of resolving any ambiguity.

Defendant cites several cases where reviewing courts concluded that police officers did not have an objectively reasonable suspicion to stop the defendants.^[2] We do not find these cases persuasive, because when applying the totality of the circumstances test, each case becomes unique and distinguishable, in that all the circumstances of one detention will not be identical to the circumstances of a prior detention.

B. Failure to Signal

A driver who makes a turn but does not signal commits a violation of the Vehicle Code only if another vehicle may be affected by the [turn]. (Veh. Code, 22107.)

The court found that there was no traffic on Alessandro Boulevard at the time defendant made his right turn, and therefore the trial court was not convinced that the defendant . . . commit[ed] a violation of Vehicle Code Section 22107. We infer from the trial courts statement that there was no traffic, that it found there were no other vehicles near defendant at the time of the right turn. We make this inference because Vehicle Code section 22107 does not require a signal only if there is traffic, rather a signal is required if another vehicle may be affected by the turn. Substantial evidence does not support the trial courts implied finding that no other vehicles may have been affected by defendants turn. Officer Levesque testified that both he and Officer Derouin were driving near defendant at the time of the turn. Consequently, substantial evidence supports a finding that at least two cars were near defendant at the time he failed to signal, and may have been affected by defendant turning his SUV.

Officer Levesque testified that both he and Officer Derouin observed defendant fail to signal when turning. Accordingly, defendant was properly detained because the facts and circumstances known to the officers supported at least a reasonable suspicion that defendant had violated the Vehicle Code. Consequently, we find no error in the trial courts denial of defendants motion to suppress. (See People v. Wallace (1992) 9 Cal.App.4th 1515, 1519 [we review actions of a trial court, and not its reasoning].)

Defendant cites the case of In re Jaime P. (2006) 40 Cal.4th 128 (Jaime P.), to support his position that the officers lacked reasonable suspicion to stop defendant for failing to signal when no other cars were on the road. In Jaime P., the minor was stopped by a police officer for failing to signal when turning. (Id. at p. 131.) The facts of the case do not indicate whether the officer was stopped or driving at the time he observed the minor fail to signal. (Ibid.) Nonetheless, in Jaime P., the People conceded that the violations would not have justified a vehicle stop, as no other vehicles were affected. (Ibid.)

Defendant notes that in our Supreme Courts analysis of Jaime P. it framed the issue in the following manner: Does a juveniles probationary search condition justify an otherwise illegal search and seizure if the officers conducting the search are then unaware that the juvenile is on probation and subject to the search condition? (Jaime P., supra,40 Cal.4th at p. 132.) Defendant argues that in framing the issue, our Supreme Court determined the stop was otherwise illegal because there were no other cars on the road. We disagree.

In Jaime P., our Supreme Court did not review the issue of whether or not the minors failure to signal constituted a traffic violation because the prosecution conceded that it was not a traffic violation. (Jaime P., supra,40 Cal.4th at p. 131.) The facts of Jaime P. do not indicate whether the officer who stopped the minor was stationary or driving at the time the minor failed to signal. (Ibid.) Accordingly, it is unclear whether the facts are similar or distinguishable to the facts in the instant case. Furthermore, the Supreme Court provided no analysis on the issue we analyze in the instant case, because the issue was conceded. Accordingly, we do not find Jaime P. to be persuasive authority.

Recently, Division Three of our district held that Vehicle Code section 22107 applies to any lane change or turn where any vehicle may be affected even if that vehicle is a police car. (People v. Logsdon (2008) 164 Cal.App.4th 741.) It is directly on point. The detention here was lawful based on the traffic violation alone; although, as we have discussed above, there was probable cause to detain the car independent of any violation.

2.

DUE PROCESS

Defendant contends that testimony elicited at trial revealed that statements given at defendants suppression hearing were false. Specifically, defendant argues that it was Officer Derouin, not Officer Levesque, who initiated the stop for defendant failing to signal when turning, and that defendant was stopped exclusively for failing to signal. Defendant contends the prosecutor violated his due process rights by (1) failing to disclose that it was Officer Derouin, not Officer Levesque, who initiated the traffic stop due to defendant failing to signal; and (2) allowing Officer Levesque to offer false testimony at the suppression hearing. Defendant argues that the allegedly false evidence is critical, because if the trial court were aware that Officer Derouin stopped defendant exclusively for a traffic violation and not because Officer Levesques reasonable suspicion that defendant was engaged in criminal activity then his motion to suppress would have been granted. We disagree.

Due process is denied when a prosecutor knowingly uses perjured testimony to obtain a conviction. (People v. Marshall (1996) 13 Cal.4th 799, 829-830 (Marshall).) In order to prevail on a claim that his due process rights were violated, defendant is not required to prove that a witness committed perjury, rather defendant only needs to show false evidence was provided. (In re Wright (1978) 78 Cal.App.3d 788, 809, fn. 5; Marshall,at p. 830.) Additionally, defendant need not show a representative of the state knew the testimony was false. (In re Wright, supra, at p. 809, fn. 5; see Marshall,at p. 830.)

The disparity in the testimony of which defendant is complaining is as follows:

At the hearing on the motion to suppress evidence, Officer Levesque testified, When [defendant] made the right, he failed to signal. At that point I decided to make a traffic stop of him. My partner officer that was proceeding to the same call I was saw him not make the -- turn the turn signal on also, and we proceeded to attempt to stop him.

At trial the following exchange took place during direct examination of Officer Levesque:

[Prosecutor]: Did you notice any law violations from the driver of that vehicle that made that right-hand turn?

[Officer Levesque]: From my position I wasnt able to tell. Officer Derouin was directly behind him who yelled at me that he didnt turn his signal on.

[Prosecutor]: When you received an indication that the driver had failed to signal before making that right-hand turn, what did you do?

[Officer Levesque]: After he made the right-hand turn, I stopped because I expected him to go to the street towards the gas station if he had run out of gas. With the subject running back into the house, it made me suspicious there on the house, so I went to make a right turn to follow him. Officer Derouin pulled in to follow the subject as he turned right, so he turned in front of me. I turned right, and Officer Derouin initiated the stop. I was going to stop him anyways.

[Prosecutor]: What do you do in an effort to make a stop?

[Officer Levesque]: Officer Derouin actually had initiated his overhead lights and siren, and at the same time, I initiated my overhead lights and siren to stop the individual.

During cross-examination of Officer Derouin, the following exchange took place:

[Defense counsel]: Did you [and Officer Levesque] get on the radio? You know, look, he didnt use the turn signal. Lets pull him over.

[Officer Derouin]: I made that decision on my own.

[Defense counsel]: Why?

[Officer Derouin]: Its a traffic violation. Its my duty to enforce all aspects of the law.

Defendant contends that Officer Levesques testimony and Officer Derouins testimony that Officer Derouin initiated the traffic stop is proof that Officer Levesque offered false evidence at the suppression hearing when he testified regarding the legal basis for stopping [defendant]. We disagree. At both hearings Officer Levesque testified that defendant was stopped for two reasons: (1) for failing to signal when turning; and (2) due to raising Officer Levesques suspicions that defendant was engaged in criminal activity. The only apparent conflict in the testimony is whether Officer Levesque stopped defendant for both the traffic violation and suspected criminal activity, or whether defendant was stopped by Officer Levesque exclusively for suspected criminal activity and by Officer Derouin solely for the traffic violation. Either way, defendant was stopped for both reasons. Consequently, we do not see an inconsistency in the testimony that would support a finding that Officer Levesque offered false evidence concerning the reasons for conducting the traffic stop. Accordingly, we find defendants contention that Officer Levesque offered false testimony to be unpersuasive.

Additionally, because the evidence reflects that defendant was simultaneously detained by both officers, we find defendants second argumentthat the prosecutor failed to disclose that it was Officer Derouin, not Officer Levesque, who initiated the traffic stopto be unpersuasive.

In sum, we conclude the prosecutor did not violate defendants due process rights.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Gaut

J.

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^[1]All further references to code sections will be to the Penal Code unless otherwise noted.

^[2]For reference, defendant cites Illinois v. Wardlow (2000) 528 U.S. 119; Reid v. Georgia(1980) 448 U.S. 438; People v. Souza (1994) 9 Cal.4th 224; People v. Loewen (1983) 35 Cal.3d 117; People v. Wilkins (1986) 186 Cal.App.3d 804.