P. v. Moreno

Filed 1/22/10 P. v. Moreno CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Burt Pines, Judge. Affirmed as modified.

Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant, David Moreno, pleaded no contest to selling cocaine (Health & Saf. Code, 11352, subd. (a)) (count 2) following the denial of his evidence suppression motion. Imposition of sentence was suspended and defendant was placed on three years formal probation on the condition that he serve 180 days in the county jail. He received credit for two days in presentence custody. He was ordered to pay: a $200 restitution fine (Pen. Code, 1202.4, subd. (b)); a $200 probation revocation restitution fine (Pen. Code, 1202.44); and a $20 court security fee. (Pen. Code,  1465.8, subd. (a)(1).) Defendant was also ordered to pay a $50 laboratory analysis fee (Health & Saf. Code,  11372.5, subd. (a)) plus penalty assessments totaling $85 ($50 pursuant to Penal Code section 1464, subdivision (a)(1), and $35 under Government Code section 76000) together with a $20 [deoxyribonucleic acid] assessment; and a $30 court facilities assessment. (Gov. Code, 70373, subd. (a)(1).) Counts 1, 3 and 4 were dismissed in the interests of justice.

II. DISCUSSION

A. The Evidence Suppression Motion

Defendant contends the trial court should have granted his Penal Code section 1538.5 motion to suppress evidence found in his car and home. Defendant argues the authorities lacked specific articulable facts to support a reasonable suspicion defendant was engaged in criminal activity. Defendants motion was specifically limited to the validity of his initial detention.

The evidence in relation to defendants motion was as follows. Los Angeles Police Detective Travis Coyle of the Foothill Narcotics Division had been a law enforcement officer since 1996. He had received police academy narcotics training. He had also received instruction from senior narcotics detectives. Detective Coyle had made between 250 and 1,000 arrests for possession for sale, transportation or sales of narcotics. He had testified in courts concerning the identification, packaging, transportation and sale of narcotics more than 25 and less than 100 times. On June 16, 2008, at 7:50 p.m., Detective Coyle was in an unmarked car in a gas station parking lot. The gas station was a known predetermined meet location for the sales of narcotics by drug traffickers. Detective Coyle had participated in about 50 arrests at the station in the past year or year and a half; 98 to 99 percent of those arrests were narcotics related. Detective Coyle saw a man on a bicycle circling the lot. The man on the bicycle stopped at a pay phone, made a brief call and immediately left the lot. The phone call lasted less than a minute; it appeared the individual making the call was talking. Detective Coyle believed the man had made a call to order up narcotics. Detective Coyle and a partner, Officer Jedd Levin, followed the man on the bicycle for about a mile or a mile and a half to the intersection of Pierce and Rincon Avenues. The man on the bicycle remained at the intersection for about five minutes. He was looking up and down the street. It looked like he was waiting for someone.

Defendant arrived driving a Honda Accord with a passenger. Defendant pulled to the curb on the opposite side of the street. The man on the bicycle immediately crossed the street and placed his right hand, containing what appeared to be wadded paper, into the drivers side window. Detective Coyle suspected the wadded paper contained money. Detective Coyle formed the opinion that the man on the bicycle was engaging in a narcotics transaction with defendant. Detective Coyle had not seen any money or drugs actually change hands.

The officers approached the Honda Accord. Detective Coyle asked defendant to exit the car. As defendant exited the Honda, Detective Coyle saw an off-white, rock-like solid that resembled cocaine base on the drivers side floorboard. And there was another such item on the floor between the drivers seat and the door. Defendant Coyle recovered both items. Several officers, including Detective Coyle, searched the Honda. Detective Coyle testified, [The search was] incident to arrest due to recovery of the item in plain sight that was on the drivers floor. The search lasted 10 to15 minutes. During the search the authorities recovered: additional items resembling rock cocaine from the drivers side door map pocket; two $5 bills that were on the front passenger seat; and a $10 and four $1 bills that were in the drivers side door map pocket. Additional currency was found on defendants person. The currency recovered totaled $135. Defendant was arrested. Additional incriminating evidence was found in a subsequent search of defendants home, to which he had consented.

Detective Coyle concluded that defendant was engaging in a call-and-deliver method of narcotics sales. Detective Coyle testified, Based on my observations, training, and experience, its my opinion that the defendant was engaging in a call-and-deliver method of narcotics sales, whereas he received phone calls from buyers and arrives at predetermined meet locations to meet those buyers to sell those narcotics that are ordered. As noted above, the trial court denied defendants evidence suppression motion.

Consistent with the Fourth Amendment to the United States Constitution, a police officer may stop and detain a motorist on reasonable suspicion the driver has violated the law. (Ornelas v. United States (1996) 517 U.S. 690, 693; People v. Wells (2006) 38 Cal.4th 1078, 1082; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200.) Reasonable suspicion is a lesser standard than probable cause. (Alabama v. White (1990) 496 U.S. 325, 330; People v. Wells, supra, 38 Cal.4th at p. 1083.) As our Supreme Court has explained: The guiding principle in determining the propriety of an investigatory detention is the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security. (Terry v. Ohio [(1968)] 392 U.S. [1,] 19; see In re Tony C. [(1978)] 21 Cal.3d [888,] 892.) In making our determination, we examine the totality of the circumstances in each case. (E.g., Alabama v. White[, supra,] 496 U.S. [at p.] 330; United States v. Wheat (8th Cir. 2001) 278 F.3d 722, 726 . . . .) [] Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip. (E.g., Alabama v. White, supra, 496 U.S. at p. 300.) But to be reasonable, the officers suspicion must be supported by some specific, articulable facts that are reasonably consistent with criminal activity. (In re Tony C., supra, 21 Cal.3d at p. 894.) The officers subjective suspicion must be objectively reasonable, and 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.] (Id. at p. 893.) But where a reasonable suspicion of criminal activity exists, the public rightfully expects a police officer to inquire into such circumstances in the proper exercise of the officers duties. [Citation.] (Id. at p. 894.) (People v. Wells, supra, 38 Cal.4th at p. 1083; accord, e.g., People v. Hernandez (2008) 45 Cal.4th 295, 299; In re Raymond C. (2008) 45 Cal.4th 303, 307.) Moreover, the United States Supreme Court has held: [Law enforcement officers can] draw on 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.] (United States v. Arvizu (2002) 534 U.S. 266, 273; accord, People v. Hernandez, supra, 45 Cal.4th at p. 299.) And police officers can rely on facts that are as consistent with innocence as they are with guilt. (United States v. Arvizu, supra, 534 U.S. at pp. 274-275; People v. Ledesma (2003) 106 Cal.App.4th 857, 863.)

We apply the following standard of review: As the finder of fact in a proceeding to suppress evidence (Pen. Code, 1538.5), the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. (People v. Lawler (1973) 9 Cal.3d 156, 160.) Accordingly, in reviewing the instant suppression order, we consider the record in the light most favorable to . . . respondents since all factual conflicts must be resolved in the manner most favorable to the [superior] courts disposition on the [suppression] motion. (People v. Martin (1973) 9 Cal.3d 687, 692.) But while we defer to the superior courts express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Lawler, supra, 9 Cal.3d at p. 160.) (People v. Woods (1999) 21 Cal.4th 668, 673-674.)

The detention was reasonable. Detective Coyle was a 12-year veteran of the police force and an experienced narcotics officer who had received specialized training in narcotics investigation. He was familiar with the gas station that was the starting point of the investigation. Detective Coyle: was watching a gas station known through experience to be a meeting place for narcotics sales; saw a man on a bicycle circle the gas station, make a phone call from a pay phone, and immediately leave; and believed the man on the bicycle had made a telephone call to order up narcotics. The man on the bicycle was followed to a location where Detective Coyle then observed further activity involving defendant that was consistent with narcotics activity. The man on the bicycle waited five minutes, watching for defendant to arrive. The man then handed defendant what Detective Coyle believed was money through the drivers window. What Detective Coyle had observed was, in his experience, a call-and-deliver method of narcotics sales. Under the totality of the circumstances, defendants detention was reasonable.

People v. Perrusquia (2007) 150 Cal.App.4th 228, 233 on which defendant relies, is not controlling. In Perrusquia, the courtrecognized: Reasonable suspicion . . . cannot be based solely on factors unrelated to the defendant, such as criminal activity in the area. (Illinois v. Wardlow (2000) 528 U.S. 119, 124.) (People v. Perrusquia, supra, 150 Cal.App.4th at p. 233.) The facts the police officer relied on in Perrusquia were: the defendant was parked near the exit to a 7-Eleven parking lot with his car running; the police officers approached; thereupon, the defendant attempted to avoid contact with them. (Id. at p. 234.) Here, Detective Coyle relied on facts specific to defendant. These included the facts that: defendant pulled his car over to the curb; defendant was immediately approached by a man who had been waiting for someone and who had been behaving in a manner consistent with a call and deliver narcotics transaction; and the man passed what Detective Coyle believed to be money to defendant through the drivers window. These were sufficient facts related to the defendant to support the detention.

B. The Criminal Laboratory Analysis Fee

As noted above, the trial court orally imposed: a $50 criminal laboratory analysis fee (Health & Saf. Code, 11372.5, subd. (a)) together with penalty assessments ($50 under Penal Code section 1464, subdivision (a)(1) and $35 pursuant to Government Code section 76000); $20 in deoxyribonucleic acid penalties; and a $30 court facilities assessment. (Gov. Code, 70373, subd. (a)(1).) The Health and Safety Code section 11372.5, subdivision (a) laboratory fee is a fine (People v. Martinez (1998) 65 Cal.App.4th 1511, 1522; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332) and as such is additionally subject to: a $10 Government Code section 76000.5, subdivision (a)(1) penalty assessment; a $10 Penal Code section 1465.7, subdivision (a) state surcharge; and a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty (the amount payable in Los Angeles County). (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530; People v. McCoy (2007) 156 Cal.App.4th 1246, 1251-1252, 1257; see People v. Talibdeen (2002) 27 Cal.4th 1151, 1153.) Further, the deoxyribonucleic acid penalties should have been not $20 as ordered but $5 under Government Code section 76104.6, subdivision (a)(1) and $5 under Government Code section 76104.7, subdivision (a) for a total of $10. (People v. Castellanos, supra, 175 Cal.App.4th at pp. 1529-1530; see People v. Valencia (2008) 166 Cal.App.4th 1392, 1394-1395.) The judgment must be modified to reflect these additional sums.

III. DISPOSITION

The judgment is modified to include a $10 Government Code section 76000.5, subdivision (a)(1) penalty assessment, a $10 Penal Code section 1465.7, subdivision (a) state surcharge, a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty, and $10, rather than $20, in deoxyribonucleic acid penalties under Government Code sections 76104.6, subdivision (a)(1) and 76104.7, subdivision (a). The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P.J.

We concur:

ARMSTRONG, J.

KRIEGLER, J.

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