v. McGlothin
Filed 5/2/13 P.
v. McGlothin CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
TIFFANY MCGLOTHIN,
Defendant
and Appellant.
B242058
(Los Angeles County
Super. Ct. No. BA386573)
APPEAL from a judgment of the Superior Court of
County. Frederick N.
Wapner, Judge. Affirmed with directions.
Richard L. Fitzer, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Connie H.
Kan, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Tiffany McGlothin appeals from her conviction of first degree
burglary entered upon a plea of nolo contendere. Defendant contends that the arresting
officers lacked reasonable suspicion of criminal
activity to justify detaining her, and that the trial court erred in
denying her motion to suppress evidence
seized as a result of the detention. We
find no merit to defendant’s contentions and affirm the judgment. However, we direct the trial court to issue a
corrected abstract of judgment reflecting the restitution fine and the victim
restitution order.
BACKGROUND
Procedural
history
Defendant was charged with
one count of first degree burglary in
violation of Penal Code section 459.
pursuant to the “Three Strikes†law and the Justice Realignment Act of 2011,
suffered a prior serious or violent felony conviction or juvenile adjudication
in 2009. After the trial court denied
defendant’s motion to suppress evidence (pursuant to section 1538.5), she
withdrew her plea of not guilty and pled no contest to the charge and admitted
the prior conviction allegation. On June 11, 2012, the trial court struck the prior
conviction allegation on its own motion and sentenced defendant to the low term
of two years in prison, with a total of 112 days of custody credits. The court also ordered defendant to pay $400
in victim restitution in addition to mandatory fines and fees, including a $200
restitution fine. Defendant filed a
timely notice of appeal.
Prosecution
evidence
At the hearing on defendant’s evidence suppression motion, Los
Angeles Police Officer Sunny Sasajima testified that several residential
burglaries had been committed in the Leimert Park
neighborhood shortly before defendant’s arrest in July 2011. As the senior officer for the area, Officer
Sasajima had read the reports and knew that witnesses had reported seeing a
common modus operandi for these burglaries:
a driver, often a woman, would drop off two or three suspects near the
target location and then park the car and wait about one-half block or block
away, maintaining communication by cell phone.
About one month before defendant’s arrest, Officer Sasajima and her partner
Officer Beard had reviewed a surveillance video depicting recent similar
activity close to the area where defendant was detained. In the video, two males could be seen
alighting from a car which dropped them off and then parked and waited. Later, the suspects could be seen fleeing
from the location.
On July
12, 2011, Officers Sasajima and Beard
received a radio call reporting that a burglary suspect had been seen at a
residence on Sutro Avenue in Leimert Park. On their way to the
residence, they saw defendant seated in the driver’s seat of a legally parked
car, about a half block from the location.
As the officers approached her in their marked police car with overhead
emergency lights, defendant looked in their direction, then immediately looked
down and began sending text messages on her cell phone. Because the circumstances were similar to the
earlier reports, the officers decided to detain defendant. Officer Beard took defendant’s cell phone and
remained with her, while Officer Sasajima went on foot to the Sutro residence
to investigate the burglary report.
The son of the property owner told Officer Sasajima that while he
was inside the home, he heard a noise, and after calling out to his sister,
heard a back window breaking. He then
fled to a neighbor’s home and called the police. He saw three African American men wearing
dark clothing walking along the side of his house. When Officer Sasajima inspected the rear door
of the house she saw that the screen door had been removed and a glass panel
had been smashed. The door was open and
pry marks were seen near the door jamb.
There were glass shards inside and outside the house.
In the meantime, after Officer Beard advised defendant of her
defendant then told him that she had dropped off “Kentrell†to commit
burglaries after he had promised her a share of the booty. When Officer Sasajima returned from
investigating the house, defendant’s cell phone rang. Asked who was calling, defendant replied that
it was Kentrell. Defendant also showed
the officers text messages from Kentrell.
DISCUSSION
I. Suppression
motion
Defendant contends that the trial court erroneously denied her
motion to suppress evidence. She
contends that the evidence showed that the officers
detained defendant solely on a “hunch†and lacked any reasonable suspicion that
she was engaged in criminal activity.
She concludes that her detention was unlawful under the Fourth Amendment
and that her statements and the evidence contained on her cell phone were “fruit of
the poisonous treeâ€
title="">[4] which must be
suppressed.
In reviewing the
ruling on a suppression motion, we defer to the trial court’s express and
implied factual findings if supported by substantial evidence, and we
independently assess whether the challenged search or seizure conforms to
constitutional standards of reasonableness.
(People v. Hughes (2002) 27 Cal.4th 287, 327-328.) We do not resolve conflicts in the testimony,
determine the credibility of witnesses,
weigh the evidence, or reject the trial court’s reasonable inferences. (People v. Lawler (1973) 9 Cal.3d 156,
160.)
“The law is well-established that ‘in order to justify an
investigative stop or detention the circumstances known or apparent to the
officer must include specific and articulable facts causing him to suspect that
(1) some activity relating to crime has taken place or is occurring or about to
occur, and (2) the person he intends to stop or detain is involved in that
activity. Not only must he subjectively
entertain such a suspicion, but it must be objectively reasonable for him to do
so: the facts must be such as would
cause any reasonable police officer in a like position, drawing when
appropriate on his training and experience [citation], to suspect the same
criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is
that an investigative stop or detention predicated on mere curiosity, rumor, or
hunch is unlawful, even though the officer may be acting in complete good
faith. [Citation.]’ [Citations.]†(People v. Loewen (1983) 35 Cal.3d
117, 123; citing, inter alia, Terry v. Ohio (1968) 392 U.S. 1, 22.)
Whether suspicion was reasonable must be determined by considering
the totality of the circumstances. (
their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that ‘might well
elude an untrained person.’
[Citations.]†(
411, 418.)
Defendant contends that although the officers had information that a
burglary was in progress, they had no reason to believe that defendant was
involved in the crime due to the following circumstances: the officers had not been informed that a
woman was involved; they had no description of the getaway car; and sending a
text message after seeing a police car was equally consistent with innocent
activity. Defendant’s argument is the “sort of
divide-and-conquer analysis†precluded under the totality
of the circumstances standard. (See
following: Officer Sasajima had
information that prior burglaries involved a getaway car parked a block or
one-half block away, often driven by a woman who used a cell phone while
waiting; and the officers had just received a radio call that a burglary was in
progress one-half block from defendant’s location when they saw a parked car
occupied by a woman who, upon catching sight of a police car, immediately began
sending a text message.
When as here, “the circumstances are ‘consistent with criminal
activity,’ they permit -- even demand -- an investigation: the public rightfully expects a police
officer to inquire into such circumstances ‘in the proper discharge of the
officer's duties.’ [Citation.] No reason appears for a contrary result simply
because the circumstances are also ‘consistent with lawful activity,’ as may
often be the case. 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 illegal --to ‘enable the police to quickly
determine whether they should allow the suspect to go about his business or
hold him to answer charges.’
[Citation.]†(
894.)
We conclude that the officers drew a reasonable deduction from the
facts, not a mere hunch. Indeed,
defendant concedes that the officers had a reasonable suspicion that a crime
was in progress, and defendant further acknowledges that the circumstances
justified making contact. She contends
however, that because innocently sending text messages is so common, the
officers were unjustified in ordering her out of her car. Defendant’s contention is made without
supporting authority, and it lacks merit.
So long as an initial investigative stop is justified, it is reasonable
and prudent to remove the driver from the car.
(See Pennsylvania v. Mimms
(1977) 434 U.S. 106, 109-111.) This is
particularly so when officers have reason to know that a burglary is in
progress nearby, as felony suspects often pose a danger to police officers.
Cal.App.4th 1222, 1230.) The fact that a
suspect’s conduct is open to an innocent interpretation does not make the
circumstances less dangerous to the officers, nor does removing the suspect
from the car make the investigative stop any less reasonable. (Ibid.)
We conclude that the officers entertained a reasonable suspicion
that defendant was involved in the burglary in progress a half block away, and
were thus justified in detaining defendant and removing her from her car. We also conclude the trial court did not err
in denying defendant’s motion to suppress evidence obtained as a result.
II. Abstract of
judgment
Respondent asks that we order the
trial court to issue an amended abstract of judgment to reflect a $400
restitution fine. She contends that
although the trial court’s minute order properly reflects its oral pronouncement,
the abstract does not. Defendant
concedes that the abstract does not reflect the restitution fine and agrees
that it should be amended.
We agree with respondent that the minute order is correct, but we do
not agree with either party that the amount of the fine was $400. The trial court ordered defendant to pay a
restitution fine of $200, and to pay direct victim restitution in the sum of
$400. We thus order the trial court to
modify the abstract of judgment by adding the correct amount for both the
direct victim restitution and the restitution fine.
DISPOSITION
The judgment is affirmed. The trial court is directed to issue a new
abstract of judgment reflecting the court’s imposition of a restitution fine in
the sum of $200 and the court’s order that defendant pay the sum of $400 in
direct victim restitution. The trial
court is further directed to forward a certified copy of the corrected abstract
of judgment to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_____________________________,
J.
CHAVEZ
We concur:
____________________________, P. J.
BOREN
____________________________, J.*
FERNS
________________________________________________________________________
* Judge of the Los Angeles Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
name="_ftn1" title="">
further statutory references are to the Penal Code unless indicated otherwise.
name="_ftn2" title="">
sections 1170.12, subdivisions (a) through (d), 667, subdivisions (b) through
(i), and 1170, subdivision (h).
