P. v. Romero
Filed 3/21/13 P. v. Romero CA2/6
Opinion following order vacating prior opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANTHONY C. ROMERO
Defendant and
Appellant.
2d Crim. No.
B235902
(Super. Ct. No.
2011011612)
(Ventura
County)
Anthony C. Romero
(Romero) appeals from the judgment following his convictions of
of former Penal Code section 12031, subdivision (a)(2)(F), and
section 186.22, subdivision (a).
name="_ftnref1" title="">[1] He challenges the legality of the search that
revealed the firearm, and the sufficiency of the evidence underlying the street
terrorism conviction. We reject his
challenge to the search and affirm the firearm conviction.
We need not address
Romero's sufficiency-of-the-evidence challenge to the street terrorism
conviction because our Supreme Court's recent decision in People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), requires us to reverse that conviction. We accordingly vacate the judgment on the
street terrorism conviction and remand for the trial court to consider whether
resentencing is necessary.
FACTS
AND PROCEDURAL HISTORY
I. The
Crimes
Romero
was arrested while in possession of loaded .32-caliber firearm with a round in
the chamber. A gang expert testified
that Romero was a member of the Oxnard-based Colonia
Chiques street gang and that his possession of a
loaded weapon furthered the gang's reputation by enabling him to assault rival
gang members.
II. The
Suppression Motion
On
the afternoon of April 2, 2011,
Oxnard Police Officer Gordon Currie saw Romero riding his bicycle on the
sidewalk. This violated the Oxnard
Municipal Code and is punishable by a fine.
Immediately after pulling over and getting out of his patrol car to talk
to Romero, Officer Currie noticed that Romero had a "dry mouth," and
saw from the veins in his neck that he had a rapid heart rate. Officer Currie recognized both symptoms as
possible signs of drug use.
Officer
Currie asked Romero for permission to pat him down, and Romero agreed. During the patdown, Officer Currie could feel
Romero's rapid heartbeat through his clothing and also noted that his eyes were
bloodshot and his tongue coated. These
were further symptoms of drug use.
Officer Currie next asked him two or three times for permission to
search the backpack he wore, but Romero refused.
Officer
Currie directed Romero to sit on the curb.
Because Romero had said he had been riding home from a gym workout,
Officer Currie decided to wait a few minutes before conducting any drug
recognition tests. This way, he could be
sure that any negative results were due to drug use and not Romero's recent
physical activity. Officer Currie spent
a few minutes filling out a field identification card on Romero before
administering drug recognition tests.
The tests confirmed Officer Currie's earlier observations. He arrested Romero for being under the influence
"of a CNS stimulant, possibly poly use." Up to this point, the encounter had lasted at
most 20 minutes.
Officer
Currie then searched Romero's backpack.
Among other things, he found the firearm and a second, fully loaded
magazine. At the police station, Romero
submitted to a presumptive urine test that came back negative for four
drugs—cocaine, THC, opiates and methamphetamine.
Romero
moved to suppress the gun. After an
evidentiary hearing, at which Officer Currie and Romero both testified, the
trial court denied the motion. The court
ruled that Officer Currie lawfully seized the gun as the fruit of a search
incident to arrest. The court found
Romero's arrest lawful under two alternative theories: (1) Officer Currie had probable cause to
arrest Romero for the bicycle violation; and (2) Officer Currie had developed
probable cause to arrest Romero for drug use while observing him during their
initial, consensual encounter.
III.
Following
denial of the suppression motion, the case proceeded to trial. The jury convicted Romero of both
counts. The court imposed a sentence of
three years' formal probation, with a county jail sentence of time served and
other terms and conditions.
DISCUSSION
I.
Denied the Motion
to Suppress
In
reviewing the trial court's suppression motion, we "'. . . defer to the
trial court's factual findings . . . where supported by substantial evidence .
. .,'" but evaluate the reasonableness of the search or seizure
independently. (People v. Weaver (2001) 26 Cal.4th 876, 924.)
We
hold that each of the trial court's alternative rationales for upholding the
search of the backpack is consistent with the
incident to an arrest for a fine-only offense is valid under the Fourth
Amendment. There is no dispute that
Officer Currie had probable cause to believe Romero violated the Oxnard
bicycling law. Officer Currie's decision
not to arrest him immediately did not negate that probable cause or otherwise
invalidate the search of the backpack, which was contemporaneous with the
arrest itself.
The
trial court also acted correctly in concluding, in the alternative, that the
gun was lawfully seized in a search incident to arrest for drug use. Officer Currie's observations supplied
sufficient probable cause to believe Romero was under the influence of
narcotics. Moreover, Officer Currie made
those observations lawfully. The
encounter was consensual until Officer Currie directed Romero to sit on the
curb (In re Manuel G. (1997) 16
Cal.4th 805, 821), and his observations up to that point provided reasonable
suspicion to justify detaining Romero for further investigation.
In
addition to disputing the trial court's alternative rationales, Romero raises
three other arguments. He contends that
Officer Currie's search is invalid because he turned out to be wrong about his
drug use. However, probable cause turns
on "a probability or substantial chance of criminal activity, not an
actual showing of such activity." (
243, 245 at fn. 13.) "[A] finding
of probable cause may not be defeated by an after-the-fact showing that
the information . . . provided was mistaken. [Citations.]" (Arizona
v. Evans (1995) 514 U.S. 1, 17.)
Romero
next asserts that Officer Currie's suspicions about drug use were a little more
than a pretext for searching his backpack.
Officer Currie's subjective motivations are irrelevant to any Fourth
Amendment analysis. (
Romero
lastly posits that a court may not justify the search as incident to an arrest
for the bicycling violation because Officer Currie did not arrest him for that
violation. In Romero's view, there was
accordingly no arrest and, under Knowles
v. Iowa (1998) 525 U.S.
113, could not be a search incident to arrest.
Knowles itself is inapplicable
because Romero was, in fact, arrested.
More to the point, Officer Currie's contemporaneous reason for the
arrest is irrelevant to the Fourth Amendment analysis. Reviewing courts must uphold an arrest on
the record—even if it is not the one the arresting officer actually
entertained. (Devenpeck v. Alford (2004) 543 U.S.
146, 153-154). Here, the record
discloses probable cause to arrest Romero for the bicycle offense. The trial court properly denied the
suppression motion.
II. The
Street Terrorism Conviction
In
Rodriguez, our Supreme Court held
that the crime of street terrorism requires the involvement of more than one
gang member and consequently cannot be committed by a gang member acting
alone. (Rodriguez, supra,
in carrying the loaded firearm in this case.
Because Rodriguez's
construction of section 186.22, subdivision (a) applies retroactively to Romero
(Burris v. Super.
Cal.4th 1012, 1023), Rodriguez
compels the conclusion that Romero's street terrorism conviction must be
overturned.
We
affirm the judgment of conviction on the loaded firearm offense, but vacate the
judgment of conviction on the street terrorism offense and remand for the trial
court to consider whether resentencing is necessary.
HOFFSTADT,
J.
We concur:
GILBERT, P.J.
PERREN, J.
James
P. Cloninger, Judge
Superior
Court County
of Ventura
______________________________
Arielle Bases, under
appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr. and
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Kimberley J. Baker-Guillemet, Deputy
Attorney General, for Plaintiff and Respondent.
references are to the Penal Code.
name="_ftn2" title=""> * Assigned
by the Chairperson of the Judicial Council.
