P. v. Wilson

Filed 6/25/08 P. v. Wilson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

‑‑‑‑

Defendant Tony Wilson appeals from his convictions for a number of drug offenses and enhancements, for having prior serious felonies, and for having served prior prison terms. Defendant contends there was insufficient evidence to support the denial of his motion to suppress, and his confession was involuntary and should not have been admitted. We shall affirm the judgment in part, but remand with directions regarding certain fees and assessments.

RELEVANT FACTUAL BACKGROUND^[1]

At 10:40 p.m. on December 6, 2002, West Sacramento Police Officer Steve Godden was dispatched to the 800 block of Pine Street in West Sacramento because of an altercation between two women. When he arrived, Officer Reece had taken one woman into custody and asked Godden to ensure the other woman, who lived at the Evergreen Circle apartments on Pine Street, made it home. The Evergreen Circle apartment complex has a north and a south gate on the west side of Pine, which serve as the entrances to the apartment complex. Godden and his partner, Officer George Hunter, followed behind the woman in their patrol car as she walked to her apartment. The officers and the woman they were seeing home proceeded from the area adjacent to the north gate toward the south gate. The distance Godden had to drive was approximately 154 feet. Traveling at a speed of three miles per hour, this would take over 20 seconds.

As they approached the south gate of the complex, Officer Godden saw defendants vehicles headlights heading westbound on Evergreen Avenue, towards Pine. Defendant was approximately 200 feet away and appeared to be traveling above the speed limit of 25 miles per hour.

Officer Godden and defendant were both approaching the south gate of the Evergreen Circle complex.Godden was proceeding in a stop-and-go manner, traveling between two to five miles per hour. He was tracking defendant off and on intermittently as defendant traveled down Evergreen Avenue, while simultaneously watching the woman he was escorting home and watching where he was driving. As Godden and defendant both approached the intersection of Pine Street and Evergreen Avenue, Godden was turning right into the south gate of the apartment complex, when defendant drove over the double yellow line and crossed through the gate.^[2] Because of defendants driving, Godden had to abruptly apply his brakes to avoid a collision with defendants car.

Officer Godden initiated a vehicle stop for defendants failure to yield the right of way at the intersection. He advised defendant why he was being stopped and asked for defendants drivers license. Defendant appeared very nervous. He was sweating profusely, although it was a cold December night. He had rapid speech and body movements. His pupils were dilated and showed slow reactions to light. Defendant was overly nervous and nonresponsive to questions. He also made movements toward the center portion of his seat which made Godden uncomfortable and concerned for his safety. Based on his observations, Godden concluded defendant was under the influence of drugs. He asked defendant whether he had imbibed in the use of any controlled substance and defendant admitted he had used marijuana about an hour previously. This admission was inconsistent with Goddens observations. Godden also asked defendant if he had any weapons in the vehicle and defendant admitted he had a knife in the car.

Based on defendants admissions of having a weapon and Officer Goddens observations of his demeanor, defendant was ordered out of his car and Godden conducted a pat-down search of defendant for weapons. He felt an object in defendants sock, which he suspected was rock cocaine and asked defendant about it. Defendant admitted it was rock cocaine. Defendant was then placed under arrest and placed in Goddens patrol car. As he was being placed in the patrol car, defendant told Godden he would save him some work and to look under the front seat, [y]oull find it anyway. Officer Hunter looked under the front seat and found a large amount of what appeared to be rock cocaine. Even without defendants admission as to the cocaine under the seat, Godden would have arrested defendant for driving under the influence of a controlled substance, defendants car would have been towed and stored, and a search incident to arrest would have been conducted.

Testing of the substance in the six plastic baggies retrieved by Officer Hunter from defendants car revealed cocaine base. All were usable amounts of drugs. Defendant acknowledged that in total he had approximately three and one-half ounces of cocaine base.^[3] Approximately three ounces of cocaine base purchased in one large quantity would cost between $1,500 and $2,100. Broken down into the smaller one-ounce size typically sold on the street, the street value of three and one-half ounces of cocaine base is approximately $10,000.^[4]

After defendant was placed under arrest, Officer Godden obtained a urine sample from him. Defendant tested positive for amphetamine, methamphetamine, cocaine and marijuana.

Because of the large amount of narcotics involved, Officer Godden called Officer Nathan Steele, advised him of defendants arrest and asked him to come and interview defendant. Officer Steele is a member of the Yolo County Narcotics Enforcement Team (YONET). Godden referred defendant to Officer Steele to obtain a statement from defendant and because of defendants potential as an informant. Steele Mirandized^[5]defendant; defendant indicated he understood his rights and provided Steele with a statement.

Officer Steele did not make defendant any promises prior to or during the interview. After defendant spoke about the circumstances of his arrest, Steele spoke with defendant about the possibility of working as an informant.

Officer Steele explained the process of becoming an informant to defendant. He noted that defendant was facing significant charges and if he had information which could assist law enforcement, they would be interested in discussing it with him. He also advised he could not make any promises, but that there was a detailed process for informants to follow and extensive criteria they have to fit. If defendant met the criteria, then there is a lengthy process by which a contract is entered into.

Officer Steele told defendant potential informants were asked to provide some initial information to let law enforcement know the informants information is legitimate, as a sort of show of good faith. In that effort, defendant gave the officer some names and permission to obtain a phone book from his home. After providing that initial information, when [defendant] understood the rules and regulations that he was going to have to follow and the process that he was going to have to follow he changed his mind about being an informant. No agreement was ever reached, no contract entered into and no information defendant provided led to any arrests.

After he was Mirandized, defendant relinquished to Officer Steele $492 that had been in the waistband of his pants. Defendant related to Steele that he had been driving his car, had been stopped by Officer Godden, a small amount of cocaine was found in his sock, and when he was arrested, he told the officer about the additional cocaine in the car. Upon further questioning, defendant stated he had purchased the drugs in Sacramento for $1,800, that he had wanted to purchase six ounces but was not able to, and that he was at the Evergreen Circle apartments to drop off the rock cocaine to be sold. Defendant stated he had been selling cocaine for a couple of months, approximately three quarters of a pound a week. Defendant also stated he had previously dealt in large amounts of marijuana. Officer Steele interviewed defendant for approximately an hour and a half to two hours. Defendant reported his own activities that night within the first 10 to 20 minutes of that interview. Towards the end of the interview it appeared defendant was trying to negotiate benefits he would receive for providing the information, but they were not things Officer Steele could provide.

Defendant testified that Officer Godden, knowing defendant was a three strikes candidate with a violent history, had indicated he knew someone who could help defendant. Based on this representation, defendant agreed to speak with Officer Steele. Defendant and Steele discussed the circumstances of his arrest. Steele asked defendant if he knew anything about helping [Steele] arrest people for drugs. He said because if I work with him I can get a lighter sentence maybe. He didnt make a specific promise but he did state that he had connections with the DA. If I helped him out they would be able to help me out. There were never any specific details of the help.

Defendant claimed he told Officer Steele about his activities that evening to let him know that I did know people and wasnt just . . . running my mouth. He wanted to assure Steele of this because he was looking for the promise of a lighter sentence. Defendant also told Steele a couple [of] street names. Steele told defendant he would need more information and defendant offered him the phone book. Defendant claimed, as an experienced arrestee and interrogatee of police based on his extensive criminal history, he would not have made the statements he did without the promise he would be helped out on [his] criminal case by Steele. Defendant said he stopped cooperating with Steele because being an informant went against his beliefs.

PROCEDURAL HISTORY

Defendant was charged by information with two counts of transportation of cocaine base (Health & Saf. Code,  11352, subd. (a)‑‑counts 1 and 8), two counts of possession for sale of cocaine base (id.,  11351.5‑‑counts 2 and 9), transportation of cocaine (id.,  11352, subd. (a)‑‑count 3), possession of cocaine (id.,  11350, subd. (a)‑‑count 4), two misdemeanor counts of driving under the influence of drugs (Veh. Code,  23152, subd. (a)‑‑counts 5 and 10), two counts of misdemeanor unlawful use of a controlled substance (Health & Saf. Code,  11550, subd. (a)‑‑counts 6 and 11), misdemeanor driving without a valid drivers license (Veh. Code,  12500, subd. (a)‑‑count 7), and one count of bringing a controlled substance into jail (Pen. Code,  4573‑‑count 12). It was further alleged defendant had four prior serious felony convictions (Pen. Code,  667, subd. (e)(2), 1192.7, subd. (c)) and had served four prior prison terms (id.,  667.5, subd. (b)).

The trial court denied defendants motion to suppress evidence for counts 1 through 7, but granted a motion to suppress the evidence underlying counts 8 through 12.^[6] The court dismissed counts 8 through 12. The People later moved to dismiss count 7 for lack of sufficient evidence and the motion was granted. Also on the Peoples motion, one of the prior serious felony conviction enhancements was stricken.

The jury found defendant guilty of two counts of transportation of a controlled substance (counts 1 and 3), one count of possession for sale of cocaine base (count 2), one count of possession of cocaine (count 4), and one misdemeanor count of being under the influence of narcotics (count 6). The jury also found true that defendant had suffered three prior serious felony convictions and served four prior prison terms. Defendant was found not guilty of driving under the influence of drugs (count 5, Veh. Code,  23152, subd. (a)). (RT 466-469, CT 358-370)

Defendant was sentenced to 25 years to life on counts 1 and 3, to be run concurrently. He was also sentenced to 25 years to life for counts 2 and 4, which sentences were stayed under Penal Code section 654. On count 6, he received an additional six months in county jail, concurrent with count 1. He was also sentenced to consecutive one-year terms for each of the four prison term priors, for an aggregate term of 29 years to life.

DISCUSSION

I. The Motion to Suppress Was Properly Denied

Defendant complains there was not substantial evidence to support the denial of his motion to suppress. Specifically, he contends Officer Goddens testimony regarding defendants failure to yield was inherently improbable. He supports this claim by arguing that since Officer Godden was tracking defendants car constantly for at least 22 seconds, he could not have had to slam on his brakes to avoid a collision with defendant. We reject this claim.

Our review of a trial courts ruling on a motion to suppress is governed by well-settled principles. We review for substantial evidence with respect to historical factual findings, express or implied, but give independent review to the applicable rule of law and application of the facts to resolve whether there has been a constitutional violation. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Williams (1988) 45 Cal.3d 1268, 1301.) On appeal, all presumptions favor the trial courts exercise of its power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences. (People v. Leyba (1981) 29 Cal.3d 591, 596.)

It is equally true that an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable. (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 234 and People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) In order to reject factual assertions as inherently improbable, however, there must be either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (Thornton, at p. 754; accord, People v. Barnes (1986) 42 Cal.3d 284, 306.)
Defense counsel expressly raised the issue of inherent improbability to the court, arguing Officer Godden wants the Court to believe that he had to slam on his brakes to avoid a collision with [defendant]. Yet, the facts of the matter are hes going two to three miles an hour . . . . Assuming he took his foot off the brake and the car even got to five miles an hour at any point in time between the 150-foot area that he had to travel, . . . he still is not going fast enough to have to slam on his brakes to avoid a collision. [] He wants you to listen to it both ways. He wants you to say, you know, I didnt really see him coming because the trees and the bushes blocked my view but, you know, I saw him going at a high rate [of] speed and at least a hundred to two hundred feet away. But after that was traveled and I had seen him and knew he was coming my way, I still had to slam on my brakes to avoid a collision. And thats why I stopped him. . . . There is no way in the world an experienced officer like Officer Godden has to slam on his brakes to avoid a collision when hes going two to three miles an hour.

The court believed Officer Goddens testimony that defendant failed to yield the right of way. We find nothing inherently improbable in Goddens testimony. While he was driving down Pine Street, he intermittently kept an eye on defendant traveling down Evergreen.^[7] He also kept an eye on the woman he was escorting home and kept an eye on where he was driving. Furthermore, we do not assume by virtue of the simple fact Godden was aware of and watching defendants progress that he necessarily should have anticipated defendant would fail to yield at the intersection. It is an equally likely inference that Godden presumed defendant would properly yield the right of way, particularly to a marked police car. Goddens testimony was not a physical impossibility nor is falsity apparent on its face. Accordingly, there was substantial evidence to support the trial courts denial of defendants motion to suppress.

II. Defendants Statements Were Voluntary and Properly Admitted

Defendant also contends his statements to Officer Steele were involuntary. Specifically, defendant argues he understood that he was required to confess and supply Steele with specific information regarding his drug dealing contacts and, in return, he would receive a lightened sentence. This claim is not supported by the record.

A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. (People v. Maury (2003) 30 Cal.4th 342, 404.) The question is whether the defendants will was overborne at the time he confessed. (Ibid., quoting Lynumn v. Illinois (1963) 372 U.S. 528, 534 [9 L.Ed.2d 922, 926].)

To determine whether defendants will was overborne, we consider the totality of the circumstances, including both the characteristics of the accused and the details of the interrogation. (In re Shawn D. (1993) 20 Cal.App.4th 200, 208-209, italics omitted; see also People v. Holloway (2004) 33 Cal.4th 96, 114.) Thus, such factors as the defendants age, sophistication, education, physical condition, mental health, and prior experience with the justice system as well as the length of the interrogation, its location, and the interrogation techniques employed by the interrogators must all be considered. (People v. Williams (1997) 16 Cal.4th 635, 660 (Williams); Shawn D., supra, 20 Cal.App.4th at p. 209.)

The appellate court reviews, de novo, the trial courts determination on the issue of voluntariness, while reviewing under the deferential substantial evidence standard, the trial courts historical findings of fact surrounding the confession. (Williams, supra, 16 Cal.4th at pp. 659-660.)

In the present case, the interview was conducted by a single police officer, at a police station, following advisement and waiver of defendants Miranda rights. Officer Steele questioned defendant for between one and one-half to two hours. Defendant reported on his own activities relative to the charges in this case within the first 10 to 20 minutes of the interview. At the time of his interview with Steele, defendant was 44 years old. Defendant has a significant prior record, dating back to 1979. He has been regularly in and out of prison since 1982. By his own admission, he has been interrogated on numerous occasions, he was read his rights, understood those rights and understood he did not have to speak with Steele.

Defendant wisely does not claim that these circumstances rendered his confession involuntary. Instead, he focuses on his claim that Officer Steele promised he would assist him with the district attorney to obtain a lighter sentence. He claims this was a promise of leniency which overcame his free will and induced admissions of his involvement in the crimes charged.

This brings us back to the the cardinal rule of the Supreme Court regarding the admission of a defendants statement: [W]here a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law. [Citation.] (People v. Boyde (1988) 46 Cal.3d 212, 238.) (People v. Vasila (1995) 38 Cal.App.4th 865, 873, italics added.) This is a two-part inquiry. [W]as a promise of leniency either expressly made or implied, and if so, did that promise motivate the subject to speak? (Ibid.)

The evidence in this case is uncontradicted that there was no promise of leniency for defendants information regarding his criminal activities of that night. Rather, after defendant spoke about his activities, there was a discussion about Officer Steele help[ing] with the D.A. and the specter of a more lenient sentence in exchange for defendants cooperation as an informant. As defendant himself testified, there was no specific promise, but he told me he would be able to help me out with the D.A. if I informed on people. Thus, to the extent any implied promise of leniency was made, it was not made as an inducement for a statement or confession about these charges, but rather as an inducement for defendant to become an informant.

The quid pro quo of an agreement, had one been reached, would have required Officer Steele to seek lenient treatment in return for defendants services as an informant for YONET; it would not have depended upon whether defendant would make a statement to the police about the crimes charged here. In fact, defendant could have invoked his rights under Miranda and still indicated his willingness to work as an informant for YONET. Thus, any implied promise of Officer Steele to help [with] the D.A. was not a motivating factor behind defendants confession regarding the charges in this case.

This view of the evidence is further supported by the specific circumstances of this case. This was not a crime that officers were seeking to solve. Defendant was caught with three and one-half ounces of rock cocaine in his car. He had been driving his car immediately prior to being stopped. His urine sample indicated he had been under the influence of drugs. There was no substantive additional information of defendants confession which led to any additional charges or which resolved any uncertainties in the evidence. Officer Steele was not seeking additional information about defendants involvement in crimes. He was seeking information about others involvement in crimes. Based on the record before us, we find no basis to conclude that defendants statements to Steele were involuntary.

III. Correction to Fees Imposed and Abstract

There are errors in the imposition of fees and in the abstract of judgment which require correction.

The trial court imposed a single $50 criminal laboratory analysis fee pursuant to Health and Safety Code section 11372.5. Defendant was, however, convicted and sentenced for two offenses enumerated under Health and Safety Code section 11372.5, subdivision (a), which provides in pertinent part, [e]very person who is convicted of [the enumerated offenses] . . . shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. (Italics added.) Since there were two convictions subject to this fee, the court should have imposed a criminal laboratory analysis fee of $50 on each conviction, or $100.^[8]

The court also imposed $120 in penalty assessments on the criminal laboratory analysis fee, without delineating which penalty assessments were imposed and in what amounts.^[9]

The court also imposed a $150 drug program fee under Health and Safety Code section 11372.7. As with Health and Safety Code section 11372.5, the drug program fee is to be imposed upon each separate qualifying offense. (Health & Saf. Code,  11372.7, subd. (a).) Here, there were two qualifying offenses. So, a drug program fee of $300 should have been imposed.

The court also imposed a $255 penalty assessment on the drug program fee. Again, the court failed to delineate which penalty assessments were imposed and in which amounts.^[10]

Lastly, we note the abstract of judgment does not reflect the imposition of any criminal laboratory analysis or drug program fees, or their attendant penalty assessments.

As stated by this court in People v. High (2004) 119 Cal.App.4th 1192, 1200, [a]ll fines and fees must be set forth in the abstract of judgment. We explained in that case: If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. (Ibid.)

Accordingly, we must remand this matter with directions to the trial court to impose the correct criminal laboratory analysis and drug program fees, delineate the assessments, fines and penalties imposed upon those fees, and correct the abstract of judgment to show those separate fines, fees, penalty assessments, and surcharges imposed instead of aggregating these amounts together.

DISPOSITION

Defendants convictions are affirmed, as is the judgment, with the exception of the criminal laboratory analysis and drug program fees and their attendant assessments, which amounts are vacated and remanded for further proceedings in accordance with this opinion. The trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.