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P. v. Muhammad
Filed 6/29/12 P. v. Muhammad 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NOT TO BE PUBLISHED IN THE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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
ALBERT MUHAMMAD, JR.,
Defendant and Appellant.
F062606
(Super. Ct. No. F09906073)
THE COURT
APPEAL from an order of the Superior Court of
County. Gary R. Orozco, Judge.
Richard J. Krech, 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, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and
Respondent.
-ooOoo-
Two police officers
riding in a marked patrol car heard several gunshots and, moments later, heard
a report from dispatch that a “silver vehicle†was involved. Less than a minute later, the officers saw a
silver car two blocks away from where the shots originated. After initiating an investigative stop, one
officer gave chase to a passenger, who fled on foot, and the other officer
found 29 oxycodone pills in a baggie in the center console. The driver, Albert Muhammad, Jr., was
standing outside the patrol car when a bag containing 21 bindles of
methamphetamine dropped to the ground between his feet.
one drug charge. On appeal, he
challenges the court’s denial of his motion.
We affirm.
BACKGROUND
On September 21, 2010, an
information charged Muhammad with, inter alia, transportation of oxycodone
(count 4; Health & Saf. Code, § 11352, subd. (a));
of oxycodone for sale (count 5; § 11351); possession of methamphetamine for
sale (count 6; § 11378); and transportation of methamphetamine (count 7; §
11379, subd. (a)).
name="_ftnref4" title="">[3] The information alleged one prior “strikeâ€
conviction (Pen. Code, §§ 667, subds. (b)-(i) & § 1170.12, subds.
(a)-(d)), two prior felony convictions related to controlled substances (§
11370.2, subds. (a), (c)), and service of one prior prison term. (Pen. Code, §
667.5, subd. (b)).
Following the
denial of his motion to suppress,
Muhammad pled no contest to possession of oxycodone for sale and admitted one
prior “strike†conviction and a prior felony conviction related to controlled
substances. Pursuant to a negotiated
plea bargain, the prosecutor moved to strike the remaining charges and
enhancements. On May 31, 2011, the court
sentenced Muhammad to state prison for a total of four years (two years doubled
pursuant to the “Three Strikes†law).
(Pen. Code, §§ 667, subd. (e)(1), 1170.12, subds. (b),
(c)(1)).
DISCUSSION
Muhammad argues that his
Amendment because the officers lacked probable cause when they initiated an
investigative stop of the silver car he was driving. The Attorney General argues that probable
cause is not necessary to initiate an investigative stop and that Muhammad’s
detention was lawful because the officers had a reasonable suspicion that his
silver car was involved in a recent nearby shooting. We agree with the Attorney General. (See, e.g., People v. Lloyd (1992) 4
Cal.App.4th 724, 733.)
The evidence that Muhammad
characterizes as improper arose from the search and seizure of his car by
police officers. Officer Mark Witrado
testified that he heard “several gunshots†that came from the area of Fresno
and C Street at 1:53 a.m. on October 23, 2009.
The officers began driving around “canvassing†the area and listening
for any updates. Officer Vincent Zavala
testified that, while they were canvassing, there was an update in the dispatch
call that said a “silver four-door vehicle†was involved. Witrado saw a silver car that fit the
description of that car at Tulare and C Street about two blocks away, within
“30 to 40 seconds†after he heard the shots.
After initiating a traffic stop
by “activating the lights,†Witrado testified the car made a turn into the
driveway of an apartment complex. The
officers continued to follow the vehicle as it slowed down, but it did not pull
over. Asked why a traffic stop was
initiated, Witrado testified that the car was speeding and matched the
description of the vehicle seen after the shots were fired, so they “attempted
to catch up to it in order to stop it.â€
Zavala testified they decided to stop the vehicle because it matched the
description.
When he saw the passenger door
open, Witrado immediately thought the vehicle was just looking for a place to
stop so that someone could get out and run.
Once the vehicle stopped, Witrado saw a “black male get out of the
passenger side.†Both officers saw a
“metallic object†in the runner’s waistband and a “magazine†from a weapon fall
to the ground. While Zavala gave chase
to the runner, Witrado ordered the other two individuals, one of whom was
Muhammad, to stay inside the vehicle.
After securing Muhammad in
another patrol vehicle, Witrado searched the silver car and found 29 oxycodone
pills in a clear baggie in the center console.
Later, while shifting his body weight from left to right during his
transfer from one patrol vehicle to another, Muhammad told Witrado he needed to
use the restroom. At that moment,
Witrado heard what sounded like a plastic satchel or sack drop to the
ground. Inside were 21 bindles of a
crystal-like substance, later identified as methamphetamine, “directly
underneath [Muhammad] in between his feet.â€
Muhammad said, “[T]hat’s not my shit.â€
On appellate review of a trial court’s
ruling on a motion to suppress, the appellate court should defer to the factual
findings of the trial court where supported by substantial evidence. The appellate court must then determine
independently, based on those facts, whether the search or seizure was
reasonable under the
States Constitution. (
719, citing People v. Glaser (1995)
11 Cal.4th 354, 362.)
To justify an investigative stop,
the circumstances known or apparent to the officer must include specific 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. As a general rule, a
defendant’s proximity to a specifically described suspect, shortly after and
near the site of the crime, provides reasonable grounds to detain for investigation
a defendant who otherwise fits certain general descriptions. (People
v. Conway (1994) 25 Cal.App.4th 385, 388, citing In re Tony C.
(1978) 21 Cal.3d 888, 893; In re Carlos
M. (1990) 220 Cal.App.3d 372, 382.)
Here, the totality of the circumstances amply justified the
investigative stop and Muhammad’s detention.
The court’s denial of his motion to suppress was proper.
DISPOSITION
The order is
affirmed.
Franson, J.
