P. v. Carrillo

Filed 3/5/08 P. v. Carrillo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

Following the denial of his motion to suppress evidence (Pen. Code,

1538.5), defendant Marcos Antonio Carrillo pleaded guilty to one count of driving with a suspended license. Thereafter, the jury found defendant guilty of selling methamphetamine and heroin and possessing them for the purpose of sale. The court sentenced defendant to three years in prison for selling heroin, and concurrent terms of three years each for selling methamphetamine, possessing methamphetamine, and possessing heroin for purposes of sale. Defendant appeals, challenging the denial of his suppression motion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At the hearing on the motion to suppress, Police Officer James Monsoor testified that he and his partner pulled defendant over for traffic violations. Monsoor approached and asked defendant for his drivers license, registration, and proof of insurance. Defendant told him his license had expired. When Monsoor asked if he had a wallet or other form of identification, defendant replied he had left his wallet at home.

Monsoor asked defendant to step outside so he could search the car for identification. Defendant got out and immediately placed both hands inside his pockets. Monsoor directed defendant, who was wearing a baggy polo T-shirt and jeans, to remove his hands from his pockets and keep them out. Monsoor then asked him to turn around and place his hands behind his back because he was concerned defendant might be armed. As Monsoor grasped defendants hands behind his back and prepared to conduct a pat-down search, defendant broke away, faced Monsoor, and placed his left hand back inside his pocket. This made Monsoor believe defendant obviously had a weapon. Monsoor regained control of defendant and asked him if he had any weapons or drugs. Defendant said he did not.

Monsoor asked defendant for permission to search his person, which defendant granted. During the pat-down search, Monsoor felt two lumps inside defendants jeans, just above his left knee. He shook defendants pant leg and two bindles fell to the ground, one containing a white crystalline substance and the other containing a brown substance, which based on experience and training Monsoor believed to be methamphetamine and heroin. He arrested defendant.

At the police station, Monsoor and his partner conducted a tape-recorded interview, which was played in open court at the suppression hearing. During the interview, Monsoor asked defendant for permission to search his residence and vehicle. Defendant agreed and signed a search form. Both the form and the conversation were in English. According to Monsoor, defendant had a moderate accent but he did not have any trouble communicating with him. Defendants answers were responsive and Monsoor had no difficulty understanding them. Nor did it appear that defendant had any problem answering Monsoors questions. Defendant never requested an interpreter.

Officers searched defendants bedroom and bathroom. They found a roll of plastic wrap, additional methamphetamine and heroin, and DMV paperwork with defendants name on it.

The court denied defendants motion to suppress the evidence recovered from the pat-down search and the search of his residence. As to the pat-down search, it noted that when he makes the furtive movements into his pockets, theres no requirement that the officers just stand by and watch and kind of guess and just say, well, I dont think hes got a gun, but we will wait and see. That would be

ridiculous. . . . [T]hey are out on the streets, its at night, theres no I.D., they dont really know who they are dealing with. So when they tell him, remove your hands from your pockets and he doesnt do so, and he makes these furtive gestures, theres nothing wrong, in the courts mind, with the officer conducting the pat-down. Officer safety reasons would justify that. And also the failure to abide by a law enforcement command would justify that. The court also found defendant had consented to the search of his person.

Regarding the search of defendants residence, the court determined defendant had consented at least two times, if not three. Additionally, there was nothing to indicate defendant did not understand what was going on, did not understand the officers. He voluntarily gives information in certain portions of the transcript. His answers are responsive to a lot of the questions. He talks about the money, he talks about the drugs, he talks about who he lived with, he talks about the type of cars he had[, and h]is home address. [] . . . [T]his isnt a situation where someones sitting there going huh? What do you mean? I dont know. Dont speak English. I dont understand. Things along those lines. [] Now, if that was all throughout the transcript, then I would tend to agree. But it is quite the opposite. You have the defendant speaking English, answering questions. It may not be the most fluid verbiage, but its verbiage. And its in English. [] . . . [Y]our argument would be a lot stronger if you could point in this transcript where he would say, I dont speak English or I dont understand English. I dont know what you are talking about. Or if he remains mute or just says something or does something during this interview which would suggest that he is completely oblivious . . . to the officers.

DISCUSSION

Defendant contends the court erred by denying his suppression motion because there was no probable cause for the pat-down search and defendants consent to search his residence was not voluntarily given. We are not persuaded.

In reviewing the trial courts ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search[es] or seizure[s] conform[] to constitutional standards of reasonableness. [Citation.] (People v. Hughes (2002) 27 Cal.4th 287, 327.) We conclude they did.

1. Pat-down Search

Defendant does not contest the propriety of his detention but argues Monsoor had no reasonable suspicion to search him for weapons. After a detention, a police officer may undertake a pat-down for officer safety if he or she believes the suspect is armed and dangerous. (Terry v. Ohio (1968) 392 U.S. 1, 27 [88 S.Ct. 1868, 20 L.Ed.2d 889].) The only justification for the search is the protection of the officer. (Id. at p. 29.)

In order to search for weapons, the officer must be able to point to specific and articulable facts together with rational inferences that reasonably support a suspicion that the suspect is armed and dangerous. (Terry v. Ohio, supra, 392 U.S. at p. 20, fn. omitted.) The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger. [Citations.] (Id. at p. 27, fn. omitted.)

Here, Monsoor stopped defendant in a high-crime area. As defendant notes, Monsoor and his partner were patrolling that area because it accounted for 40 percent of the citys crime and 40 percent of their service calls. Defendant had no identification. He wore baggie clothing, which could conceal a weapon. And upon exiting the car pursuant to Monsoors request, defendant immediately placed both hands inside his pockets.

Defendant asserts that because he took his hands out when directed to do, the act of placing his hands in his pockets did not provide Monsoor a reason to believe that he [was] dealing with an armed and dangerous individual . . . . (Terry v. Ohio, supra, 392 U.S. at p. 27.) But although he initially complied with Monsoors instruction to remove his hands and place them behind his back, he broke away when Monsoor grasped his hands, turned around to face him, and then put his left hand back inside his pocket. These movements, together with the other information Monsoor had at the time, made the pat-down search objectively reasonable.

Defendant is correct that a daytime traffic stop, the inability to produce identification, and the location of the stop in a high-crime area are each insufficient by themselves to justify a pat-down. But we examine the factors as a whole, not individually. (People v. Avila (1997) 58 Cal.App.4th 1069, 1074 [although perhaps individually harmless, factors observed by police can reasonably combine to create fear in a detaining officer]; In re Frank V. (1991) 233 Cal.App.3d 1232, 1240-1241 [pat-down justified where the defendant, detained late at night in gang area, was wearing a bulky jacket and began to replace his hands inside his jacket pockets after officer had just asked him to take them out].) In combination, the above factors constituted reasonable, articulable facts justifying the pat-down search. Given our conclusion, we need not and do not address defendants contention his subsequent consent to the pat-down was involuntary.

Defendant maintains it is improper to consider his actions in breaking away from Monsoor and placing his hand back in his pocket because the search began when Monsoor grasped his hands behind his back. According to defendant, a search is a governmental intrusion on someones personal security and Monsoor testified he was preparing to conduct a pat-down of the exterior of defendants clothing. But he does not explain how grasping his hands constituted an intrusion upon his personal security. Nor does the case he cites, People v. Mayberry (1982) 31 Cal.3d 335, 341, stand for that proposition. Thus, defendant waived this assertion. (People v. Stanley (1995) 10 Cal.4th 764, 793 [contentions waived by failure to support them with reasoned argument and citations to authority].) Moreover, regardless of what Monsoors intent was, he did not in fact search defendant at that point because defendant broke away from him. It was not until he regained control of defendant and obtained permission from him to search his person that Monsoor conducted the pat-down search.

On this record, the trial courts ruling Monsoor acted reasonably is supported by substantial evidence. The detention and pat-down for weapons were objectively reasonable under the Fourth Amendment.

2. Search of Residence

Defendant contends his consent to search his residence was invalid because his primary language was Spanish and he did not speak English well enough to understand what was being asked of him. We disagree.

The voluntariness of the consent is in every case a question of fact to be determined in the light of all the circumstances. [Citations.] (People v. James (1977) 19 Cal.3d 99, 106.) Accordingly, the trial courts findings on this issue, either express or implied, must be upheld on appeal if they are supported by substantial evidence. We presume in favor of the proper exercise of the trial courts power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence, and draw factual inferences

. . . . (Id. at p. 107.)

The issue is whether defendants command of English was so limited as to prevent him from understanding the officers explanation of the contemplated search, thus rendering him unable to give knowing consent. We have reviewed both the taped recording and the transcript of the interview and conclude they provide substantial evidence to support the trial courts finding defendant understood sufficient English to have voluntarily consented to the search of his residence. Defendant conversed with the officers in English and responded appropriately to questions asked in English. He provided his name, age, address, and date of birth, noting that it was only two weeks away. He stated he lived with his brother and uncle, who was his mothers brother, and that he had lived in that apartment for five years. Prior to that, he had lived in apartment No. 4 in the same complex for three years. He told them he did not have a valid drivers license because it was expired and answered affirmatively when asked whether he was on probation through 2007 for that conviction for drunk driving and suspended license. When asked what kind of work he did, defendant said welding doors, windows[,] [f]oundations house, fenders.

Defendant said the larger and smaller bindles found during the pat-down search respectively contained crystal methamphetamine and chiva, a term he used to refer to heroin and which means an animal in Spanish. He clarified that he paid $130, not $100, for the drugs, and described the paraphernalia he used to smoke them: a glass pipe for the crystal methamphetamine, which he smoked every day, and aluminum foil for the heroin, which he smoked on three occasions. He also admitted he was trying to hide the drugs in his underwear when he put his hands in his pockets and that he had been arrested a number of times for different things. But he denied being arrested in 2006 for possession of narcotics for sale and resisted all attempts to elicit an admission he was a drug dealer. He discussed at length his drug problem and his brothers concern about it and was quick to emphasize that neither of the men who shared his apartment used drugs. When asked if there were any guns in the apartment, defendant replied, No. . . . [T]hese are good people[,] and added, my brother goes to school and work.

In another case involving defendant, he appeared on some dates with an interpreter, but on others he did not feel the need to use one. The case file contained a form agreement, printed in English, regarding defendants release on his own recognizance. Defendant signed it, printed his name, phone number, and address in English and also wrote, I have read and understood the above agreement.

These facts distinguish this case from United States v. Garibay (9th Cir. 1998) 143 F.3d 534, cited by defendant. As the Attorney General notes, the defendant in Garibay, unlike here,spoke only a few words of English, did not seem to understand what was being said to him, had no previous experience with the criminal process, and received a borderline retarded score following standardized intelligence testing. (Id. at pp. 537-539.)

Defendant points out various instances in which he gave confusing, unintelligible, contradictory, and non-responsive answers. This is nothing more than a request that we reweigh the evidence, which we cannot and will not do. Although defendant acknowledges our inability to reweigh evidence, he notes Monsoor testified defendant acted surprised or almost astonished when shown photographs of the contraband found in his room. He suggests he was astonished, not at what was found, but that the officers had gone to his residence at all. We decline to consider what appears to be nothing more than speculation.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

OLEARY, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com