P. v. Zamarripa
Filed 10/9/13 P. v. Zamarripa CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD
M. ZAMARRIPA,
Defendant and Appellant.
B242141
(Los Angeles County
Super. Ct. No. VA122389)
APPEAL
from a judgment of the Superior Court of
County, Lori Ann Fournier, Judge. Conditionally reversed and remanded with
directions.
Murray
A. Rosenberg, 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 Richard M. Zamarripa appeals from the
judgment following his jury conviction of possession
of a controlled substance and being under the influence of a controlled
substance. Defendant argues that the
trial court erred in denying his motion to suppress evidence obtained as the
result of an illegal search and seizure,
and that it abused its discretion in denying his motion to strike his prior
strike conviction. We disagree.
Defendant also requests that we
review the record of the in camera
hearing on his Pitchess
motion. Our review indicates that proper
procedure was not followed. We conditionally
reverse the judgment and remand for a new Pitchess
hearing.
Around noon on July 24,
2011,
Officer Murillo was on patrol near the Best Whittier Inn, which he knew to be a
high-crime area. The officer saw
defendant next to a pickup truck in the parking lot of the inn. He was surrounded by bags containing various
items, including clothing. Another man
stood next to the passenger side of the truck.
At some point during the encounter, Officer Murillo called for assistance
and an officer arrived to assist with the other man.
Officer Murillo at first pulled up to
defendant’s truck in his patrol car and asked defendant if he would mind
speaking with the officer. Defendant
said he did not mind. The officer asked
defendant what he was doing, and defendant responded he was cleaning his
truck. The officer then got out of the
patrol car and asked if defendant was on probation or parole. Defendant answered he had been discharged
from parole in January 2010 for drug possession. Defendant appeared nervous and twice put his
hand in his right front pant pocket. The
officer advised him he needed to see his hands for safety reasons. Defendant apologized and said he was nervous
around police. He denied he had anything
illegal in his possession. When asked if
he would mind being searched for narcotics or weapons, defendant told the
officer to “go ahead.†The officer
searched defendant’s waistline. In
defendant’s right front pant pocket, he found a folded $20 bill containing a crystal-like
substance that turned out to be methamphetamine. Defendant was arrested and transported to the
police station.
Two days later, defendant was
arrested again, this time in a Motel 6 parking lot in Whittier.
He exhibited symptoms of being under the influence of
methamphetamine. Defendant agreed to
give a urine sample at the police station.
The sample was later tested and confirmed the presence of amphetamine
and methamphetamine.
In a consolidated and amended
information, defendant was charged with possession
of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and
being under the influence of a controlled substance (Health & Saf. Code, §
11550, subd. (a).) Three prior felony
convictions were alleged under Penal Code section 667.5,
subdivision (b). One of them was
alleged to be a prior serious or violent felony conviction for purposes of the
Three Strikes law, Penal Code sections 1170.12, subdivision (a) through (d) and
667, subdivisions (b) through (i).
The court denied defendant’s pretrial
motion to suppress the evidence obtained during the July 24 encounter with
Officer Murillo. It granted his
an in camera hearing at which no discoverable documents were found. A jury convicted defendant as charged, and he
admitted his prior convictions. The
court denied defendant’s motion to strike his prior strike conviction and sentenced
defendant to prison for two years on count 1, doubled to four years due to the
prior strike. A concurrent one-year term
was imposed on count 2. His two prison
priors were stricken. Defendant was
given 56 days in custody credits. He was assessed various fines and fees.
This timely appeal followed.
I
Defendant
contends the evidence obtained on July 24 should have been suppressed because
his encounter with Officer Murillo was not consensual and amounted to an
unlawful detention.
We review the trial court’s findings
for substantial evidence, but independently assess whether an illegal search or
seizure occurred. (People v. Hughes (2002) 27 Cal.4th 287, 327.)
Defendant testified he did not consent to be searched. The court credited the officer’s version of
events, finding the search was consensual.
Defendant maintains the court failed to determine if the encounter with
police was consensual.
A “consensual encounter†involves
““‘no restraint of an individual’s liberty whatsoever—i.e., no ‘seizure,’
however minimal—and . . . may properly be initiated by police officers even if
they lack any ‘objective justification.’’â€â€
(People v. Hughes,
911.) A seizure occurs only where “the
officer, by means of physical force or show of authority, in some manner
restrains the individual’s liberty . . . .â€
(In re Manuel G. (1997) 16
Cal.4th 805, 821.) Factors indicating a
seizure include “the presence of several officers, an officer’s display of a weapon,
some physical touching of the person, or the use of language or of a tone of
voice indicating that compliance with the officer’s request might be
compelled.†(Ibid.)
Defendant argues that Officer
Murillo’s acts of pulling up next to defendant in a patrol car, asking him
whether he was on parole, and calling a second officer for assistance amounted
to an unmistakable show of authority. We
disagree.
“It is not the nature of the question
or request made by the authorities, but rather the manner or mode in which it
is put to the citizen that guides us in deciding whether compliance was
voluntary or not.†(People v. Franklin (1987) 192 Cal.App.3d 935, 941; but see
1232, 1238 [both nature and manner of request must be examined].) In People
v. Bennett (1998) 68 Cal.App.4th 396, an officer approached a man and asked
a series of questions: whether the
officer could talk to him for a moment, whether the man was on parole, and
whether he would wait in the police car while the officer ran a warrants
check. (Id. at p. 402.) Because the
officer’s tone of voice was calm and conversational, the encounter was held to
be consensual. (Ibid.) In contrast, in
1100, an officer shined the patrol car’s spotlight onto a man, walked “brisklyâ€
towards him, and, without engaging him in conversation, immediately asked about
his probation and parole status. The
officer’s non-verbal actions were held to constitute an intimidating show of
authority. (Id. at pp. 1111–1112.)
Officer Murillo testified he did not
block defendant’s truck with his patrol car and asked defendant through the
passenger window if he would “mind†speaking with the officer. Defendant was asked whether he was on parole
and was “advised†that the officer needed to see his hands for safety
reasons. There is no evidence that the
officer approached defendant with any urgency, or that he used a commanding,
threatening or accusatory tone of voice at any time during the encounter. (See In
re Frank V., supra, 233
Cal.App.3d at p. 1239 [“A mere request that a citizen remove his hands from his
pockets is not the same as a command to stop or stayâ€].) Defendant acknowledged he did not feel
threatened.
Although
another officer at some point arrived at the scene, there is hardly any
evidence in the record regarding his actions.
Officer Murillo testified he called for assistance at some point after
he spoke to defendant, and a second officer was present when defendant
consented to the search. That officer’s
attention was directed at the other man on the scene rather than at
defendant. It is unclear exactly what
the officer did, but there is no evidence he showed any force or
authority. Defendant did not mention the
second officer at all during his testimony, and the evidence does not indicate
whether he was aware that Officer Murillo had called for assistance. In the absence of evidence that either
officer engaged in any force or show of authority, we cannot conclude that the
second officer’s arrival turned what was until then a consensual encounter into
a seizure. (See U.S. v. Mendenhall (1980) 446 U.S. 544, 554 [the “
officers†is one of several circumstances that might indicate a seizure],
italics added.)
Since the
encounter with Officer Murillo was consensual, the trial court properly denied
defendant’s motion to suppress evidence.
II
Defendant contends the court abused
its discretion in denying his Romero
motion to strike his 2002 conviction of criminal threats (Pen. Code, § 422).
A trial court’s refusal to strike a prior serious or
violent felony conviction is an abuse of discretion only if it is “so
irrational or arbitrary that no reasonable person could agree with it.†(People
v. Carmony (2004) 33 Cal.4th 367, 377.)
In ruling on a Romero motion
and in reviewing such a ruling, the courts “must consider whether, in light of
the nature and circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character,
and prospects, the defendant may be deemed outside the . . . spirit [of the
Three Strikes law], in whole or in part, and hence should be treated as though
he had not previously been convicted of one or more serious and/or violent
felonies.†(People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant
moved to have his criminal threats conviction stricken because it was more than
10 years old; he had been granted probation; there was no violence in his
subsequent record, which consisted of drug possession crimes; and he had a drug
problem. Defendant claims the court
exhibited antipathy and failed to consider him as an individual in denying the
motion. The record does not bear this
out. The court justifiably relied on defendant’s
long criminal history, which spans 25 years, his many convictions and failed
attempts at probation, his two prison terms since 2002, and his continued
commission of felony offenses.
Neither the
remoteness of defendant’s prior strike conviction, nor the lack of violence in
his record or his drug problem necessarily take him outside the spirit of the
Three Strikes law. (See
where defendant did not refrain from criminal activity in the interim];
328, 345–346 [strike conviction not dismissed despite absence of violence where
defendant was career criminal]; People v.
Gaston (1999) 74 Cal.App.4th 310, 322 [drug problem not a mitigating factor
without evidence of efforts to eradicate it].)
Defendant
relies on People v. Bishop (1997) 56
Cal.App.4th 1245 (Bishop), where the
dismissal of two of three prior strike convictions was upheld on appeal. His reliance is misplaced. As other courts have noted,
17 Cal.4th 148, and did not address whether the defendant was outside the
spirit of the Three Strikes law. (
Rather, the court in Bishop focused
almost entirely on the fact that defendant’s three strike convictions were for
robberies committed 17 to 20 years before his current crime of petty
theft. (Id. at p. 1251.) The holding
in Bishop may not be read to mean
that it would have been an abuse of discretion for the trial court to refuse to
strike the prior strike convictions. (
1418, 1434.) To the contrary, the
appellate court in that case was “of the opinion that Bishop appears
undeserving of leniency.†(
The trial
court did not abuse its discretion in refusing to strike defendant’s prior
strike conviction.
III
The trial
court granted defendant’s Pitchess
motion only as to complaints that Officer Murillo had previously falsified
consent to search.
title="">[4] After an in camera hearing, the court
determined there were no discoverable documents. Defendant asks us to independently review the
materials considered by the trial court during the in camera hearing to
ascertain that the court did not abuse its discretion in withholding
discoverable information from him. We
ordered the sealed transcript of the in camera hearing and after reviewing it
conclude the court did not follow proper procedure.
When a defendant files a
a police officer’s personnel records, the trial court rather than the custodian
of records must determine whether potentially responsive documents should be
produced to the defendant. (
1225–1226, 1229 (Mooc).) The custodian is not required to produce the
officer’s entire personnel record, but “should be prepared to state in chambers
and for the record what other documents (or category of documents) not
presented to the court were included in the complete personnel record, and why
those were deemed irrelevant or otherwise nonresponsive to the defendant’s
at p. 1229) The court may ask questions
regarding the completeness of the record and must make a record of the documents
it has examined. (Ibid.)
Here, the custodian of records
testified under oath that he had the personnel complaints for Officer Murillo
and that there were “[n]o complaints regarding falsified consent to
search.†The custodian did not produce
the officer’s personnel file for the court’s review, nor did he state on the
record what categories of complaints, if any, were included in the officer’s
file or why he chose to withhold them.
The procedure followed in this case
is similar to that rejected in People v.
Wycoff (2008) 164 Cal.App.4th 410, and People
v. Guevara (2007) 148 Cal.App.4th 62.
“[I]n cases such as this where the custodian of records does not produce
the entire personnel file for the court’s review, he or she must establish on
the record what documents or category of documents were included in the
complete personnel file. In addition, if
it is not readily apparent from the nature of the documents that they are
nonresponsive or irrelevant to the discovery request, the custodian must
explain his or her decision to withhold them.
Absent this information, the court cannot adequately assess the
completeness of the custodian’s review of the personnel files, nor can it
establish the legitimacy of the custodian’s decision to withhold documents contained
therein. Such a procedure is necessary
to satisfy the Supreme Court’s pronouncement that ‘the locus of decisionmaking’
at a Pitchess hearing ‘is to be the
trial court, not the prosecution or the custodian of records.’ [Citation.]
It is for the court to make not only the final evaluation but also a
record that can be reviewed on appeal.â€
(Id. at p. 69;
[same].)
We conditionally reverse the judgment
and remand for a new Pitchess hearing
to be conducted following the procedures laid out in Mooc, supra, 26 Cal.4th
at page 1229, People v. Wycoff,
and People v. Guevara,
The judgment is conditionally
reversed. The matter is remanded to the
trial court with directions to hold a new Pitchess
hearing in conformance with the procedures referenced in this opinion. If the trial court finds there are
discoverable records, they shall be produced and the court shall conduct such
further proceedings as are necessary and appropriate. If the court finds there are no discoverable
records, or that there is discoverable information but defendant cannot
establish that he was prejudiced by the denial of discovery, the judgment shall
be reinstated as of the date of the court’s ruling on these issues.
EPSTEIN, P. J.
We concur:
WILLHITE,
J. SUZUKAWA,
J.
Superior Court (1974) 11 Cal.3d 531.
Superior Court (Romero) (1996) 13
Cal.4th 497.
