P. v. Sparkmon

Filed 9/6/07 P. v. Sparkmon 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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Defendant James Robert Sparkmon appeals from a judgment convicting him of vehicle theft following entry of a no contest plea. Defendant contends his suppression motion was wrongly denied. Concluding defendant did consent to a patdown search and that his consent was voluntary, we affirm the trial courts judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 3, 2006, at 8:00 p.m., Deputy Sheriff Glen Petree responded to notice of a suspicious vehicle, identified as a large white Ford van with no plates. Officer Petree arrived at the scene and saw a white Ford van with no plates parked on the street. Officer Petree parked behind the van and saw a man, later identified as defendant, standing at the top of a residential driveway across the street.

Deputy Petree walked toward defendant and asked if he could talk to him. Defendant said, [O]kay, and walked toward Deputy Petree. Deputy Petree then asked defendant whether he knew anything about the van. Defendant replied only that he saw a couple of guys get out of the van and walk down the street.

Deputy Petree then asked defendant if he was on probation or parole. Defendant said he was not, after which Deputy Petree asked to see some identification. Defendant showed a California identification card, which Deputy Petree took across the street to check for outstanding warrants. Deputy Sheri Martell, who was there to assist Deputy Petree, remained with defendant.

Finding no outstanding warrants for defendant, Deputy Petree returned defendants identification and asked defendant if he had any car keys with him. Defendant said he did not. Deputy Petree then asked if he could search defendant. Defendant said, I guess so if you got to. Defendant then turned his back to Deputy Petree, Deputy Petree had defendant place his hands on the back of his head, and Deputy Petree patted him down.

During the patdown, Deputy Petree found keys in defendants front left pocket. Deputy Petree gave the keys to Deputy Martell, who was able to use them to open the van and start the engine. Inside the van, the officers found license plates along with a motel receipt bearing defendants name. The officers ran the plates and learned they belonged to the van, which was reported stolen. They arrested defendant who was later charged with vehicle theft (Veh. Code, 10851, subd. (a)) and possession of stolen property (Pen. Code, 496d, subd. (a)).

Before trial, defendant filed a motion to suppress the evidence discovered as a result of the patdown search. Defendant argued he did not voluntarily consent to the search, that he was merely acquiescing to authority. The trial court denied his motion. Defendant then pled no contest to the vehicle theft charge and was sentenced to four years of probation. Defendant now appeals, contending the trial court erred by denying the suppression motion.

DISCUSSION

[A] search without a warrant . . . is per se unreasonable . . . subject only to a few specifically established and well delineated exceptions. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [36 L.Ed.2d 854, 858].) One of those exceptions is a search conducted pursuant to consent. (Ibid.; seealso People v. Michael (1955) 45 Cal.2d 751, 753.) The consent must, however, be freely and voluntarily given. (See Bumper v. North Carolina (1968) 391 U.S. 543, 548 [20 L.Ed.2d 797, 802].) The . . . voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial courts findings -- whether express or implied -- must be upheld if supported by substantial evidence. (People v. Monterroso (2004) 34 Cal.4th 743, 758, quoting People v. James (1977) 19 Cal.3d 99, 107 (James).)

Defendant first contends his response to Deputy Petrees request to perform a patdown search--I guess so if you got

to--did not constitute consent. We disagree. As our Supreme Court wrote in People v. James, supra, 19 Cal.3d 99: There is no talismanic phrase which must be uttered by a suspect in order to authorize a search. The request which [Deputy Petree] put to defendant was clear and simple, and Defendants affirmative response was far less equivocal than many which have been found to evidence consent. (See, e.g., People v. Carrillo (1966) 64 Cal.2d 387, 393 [] (defendants ex-wife consented to search by saying go ahead and she didnt care); People v. Perillo (1969) 275 Cal.App.2d 778, 782 [] (I dont care); People v. Dahlke (1967) 257 Cal.App.2d 82, 86 (Do what you want).) Indeed, no words at all need be spoken: in appropriate circumstances, consent to enter may be unmistakably manifested by a gesture alone. (James, supra, 19 Cal.3d at p. 113.) Accordingly, we conclude there is substantial evidence to support the trial courts finding that when defendant said, I guess so if you got to, in response to Deputy Petrees request to perform a patdown search, defendant consented to the search. Defendants further argument that his consent was not voluntary is similarly unavailing.

Whether defendants consent was voluntary requires us to review the totality of circumstances surrounding his consent. (Schneckloth v. Bustamonte, supra, 412 U.S. at pp. 232-233 [36 L.Ed.2d at pp. 865-866].) Courts have identified many factors that may be relevant in determining whether consent was voluntary, including: (1) whether the consenting person was in

custody and whether Miranda warnings were given; (2) whether the officer or officers have weapons drawn; (3) whether the officer informed the person of the right to refuse consent; (4) whether the person was told a search warrant could be obtained; (5) whether consent was obtained while the person was confronted by many officers; (6) whether the consenting person experienced a significant interruption of his or her liberty; (7) whether the officer used deceptive practices to obtain consent; and (8) whether the person has previous experience with the criminal justice system. (See People v. Ledesma (1987) 43 Cal.3d 171, 233-235; see also U.S. v. Cormier (9th Cir. 2000) 220 F.3d 1103, 1112; see also People v. Avalos (1996) 47 Cal.App.4th 1569, 1578; People v. Monterroso, supra, 34 Cal.4th 743, 758-759.) But no single factor is dispositive of this factually intensive inquiry. (People v. Avalos, supra, 47 Cal.App.4th at p. 1578.)

Defendant contends his consent was involuntary because: (1) The search took place after 8:00 p.m. [] (2) There were two officers present, one of whom stayed with [defendant] while the other took [defendant]s I.D. across the street for an unknown period of time [] (3) Deputy Petree did eventually give [defendant] his Miranda warnings before [defendant] was handcuffed [] (4) The record does not indicate that [defendant] was told whether he could refuse to consent or whether he was told that a search warrant could be obtained.

As an initial matter, the law is well settled that the officers were not required to tell defendant that he has a right

to refuse consent in order for his consent to be voluntary. (See Schneckloth v. Bustamonte, supra, 412 U.S. at pp. 233-234

[36 L.Ed.2d at pp. 866-867]; see also People v. Monterroso, supra, 34 Cal.4th at p. 758.) Defendants contention is that his consent was involuntary because it was 8:00 p.m. at night, there were two officers present, and there is no evidence the officers told defendant they could obtain a search warrant is similarly unavailing.

In People v. James, supra, 19 Cal.3d 99, our Supreme Court found substantial evidence to support a finding of voluntary consent where four police officers arrested and handcuffed the defendant at his front door, then asked if they could look in the house for items taken during a robbery they were investigating. (Id.at pp. 106-107, 118.) James involved far more coercive circumstances than the present case and yet the court upheld a finding that the defendants consent was voluntary.

At oral argument in this court, defendant cited the recent United States Supreme Court decision, Brendlin v. California (2007) 551 U.S. ___ [168 L.Ed.2d 132] (Brendlin). Defendants reliance on Brendlin is misplaced. In Brendlin, the Supreme Court ruled only that a passenger in a vehicle is seized when police officers conduct a traffic stop. (Brendlin, supra, 551 U.S. ___ [168 L.Ed.2d at pp. 143-144].) The Court did not address the issue of consent, the issue raised by defendant in this appeal.

Here, the trial courts finding that defendant voluntarily consented to the search is supported by substantial evidence.

The ruling in Brendlin does not alter that conclusion.

DISPOSITION

The trial court judgment is affirmed.

SIMS , Acting P.J.

We concur:

NICHOLSON , J.

BUTZ , J.

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