P. v. Guyette
Filed 6/25/13
P. v. Guyette CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES ELLIOT GUYETTE,
Defendant and Appellant.
F065046
(Super. Ct. No. CRM020110A)
O P I N I O N
THE COURT
APPEAL from
a judgment of the Superior Court of
County. John D. Kirihara, Judge.
Tutti
Hacking, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda
D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Charles
Elliot Guyette pled no contest to three felony counts: commercial burglary (Pen. Code, § 459),
of stolen property (§ 496, subd. (a)) and forgery (§ 475, subd.
(c)), and admitted a prior strike conviction.
In exchange, the People agreed to the dismissal of two prior prison term
enhancements and a stipulated sentence of five years four months, which the
court subsequently imposed. On appeal,
Guyette contends the trial court erroneously denied his suppression motion
because the incriminating evidence was seized while he was illegally detained,
the finding he consented to be searched, and the resulting arrest was
illegal. Thus, all fruits of the
detention, including his statements and the incriminating items taken from his
pockets, should have been suppressed. We
disagree and affirm.
FACTS
On October
22, 2011, at 10:45 p.m., Merced Police Officer Leon Pintabona was patrolling
when he was dispatched to investigate an alarm
immediately. When he arrived, he saw
Guyette and co-defendant Hernandez walking at a normal pace directly in front
of the building. Pintabona parked his
patrol car, approached the men and asked if he could speak with them. Hernandez said “sure†and both men walked
over to him. Pintabona asked the men to
sit on the curb and “obtained†Guyette’s identification. Guyette testified he gave his identification
to Pintabona and did not recall getting it back. Pintabona used the identification to fill out
a card. About thirty seconds after
Pintabona arrived, Officer Gonzales arrived.
Gonzales told Pintabona there was a broken window on the side of the
building and the back door was open.
Pintabona had noticed that Guyette had a small cut on his left forearm. About a minute and a half to two minutes
after he had initially contacted the men, Pintabona asked Guyette for
permission to search him; Guyette responded, “sure.†Guyette had a pocketknife, a bent Phillips
head screwdriver and seven screws in his pocket. The seven screws matched the screws missing
from the broken window at the business.
Pintabona did not recall Guyette doing anything unusual with his hands,
which were on his lap. Pintabona
arrested Guyette after comparing the screws in Guyette’s pocket with those in
the building’s window.
Guyette
testified that he has a tracheostomy and must cover the tracheostomy opening
with his finger in order to talk. His
speech is “very minimal†absent that maneuver.
Guyette denied that he had agreed to be searched and did not recall
whether Pintabona returned his identification to him.
The trial
court denied the motion to suppress concluding that this was a consensual
encounter and that Guyette had consented to the search.
Evidence at the preliminary hearing
indicated that the property stolen from the business¾a law office¾was
found in a vacant unit in the adjacent apartment complex where Hernandez
lived.
DISCUSSION
Guyette
contends (1) he was detained when Pintabona asked him to sit on the curb and to
provide his identification, (2) there was no reasonable suspicion to detain
him, (3) substantial evidence does not support the finding he consented to
the search, and (4) as a result, all evidence seized should have been
suppressed. The People respond
(1) Guyette was not detained, (2) if he was, the detention was supported
by reasonable suspicion, (3) substantial evidence supports the consent
finding, and (4) Guyette cannot challenge his arrest now because he did not do
so in the trial court.
On
review of the denial of a motion to suppress, we defer to the trial court’s
factual findings, where supported by substantial evidence, but exercise our
independent judgment to determine whether, on the facts found, the search and
seizure were reasonable under the Fourth Amendment. (People
v. Camacho (2000) 23 Cal.4th 824, 830.)
Detention
Not every
encounter between a police officer and an individual involves a seizure. A seizure occurs when the officer, “by means
of physical force or show of authority,†restrains the individual’s freedom of
movement. Whether a seizure has occurred
is determined by an objective test that asks not whether the individual
perceived that he was being ordered to restrict his movement, but whether the
officer’s words and actions would have conveyed that to a reasonable
person. When police engage in conduct
that would communicate to a reasonable person that he was not free to ignore
the police presence and go about his business, there has been a seizure. (People
v. Celis (2004) 33 Cal.4th 667, 673.)
In this case, Officer Pintabona
testified he asked if he could speak with Guyette and Hernandez. Hernandez said “sure†and both men walked
over to him. Pintabona asked the men to
sit on the curb and “obtained†Guyette’s identification, which he retained as
he filled out an identification card.
The parties disagree as to whether
Guyette was detained when the officer asked him to sit on the curb and obtained
his identification. Guyette contends he
was detained and relies on two cases. In
People v. Vibanco (2007) 151
Cal.App.4th 1, 9, the prosecution conceded that a passenger in a stopped car
was detained when the officers directed him to sit on the curb. In People
v. Castaneda (1995) 35 Cal.App.4th 1222, 1227 the court held that while the
suspect was not detained simply because the officer requested identification
from him, once he complied and submitted his identification card to the
officer, a reasonable person would not have felt free to leave.
The People respond that Guyette’s
compliance with the officer’s request that he sit on the curb and provide
identification did not amount to a detention.
They cite People v. Cartwright
(1999) 72 Cal.App.4th 1362, 1370, Immigration
& Naturalization Service v. Delgado (1984) 466 U.S. 210, 216 (
that where a suspect’s decision to cooperate with an officer’s request for
information and identification was consensual, it did not constitute a
seizure. The United States Supreme Court
noted that while most citizens will respond to a police request, that they do
so without being told they are free not to respond, does not eliminate the
consensual nature of the response. Unless
the circumstances of the encounter are so intimidating as to demonstrate that a
reasonable person would have believed he was not free to leave if he had not
responded, the questioning does not result in a detention under the Fourth
Amendment. (Delgado, supra,
The facts of this case present a
close question. The officer testified he
asked Guyette to sit on the curb and “obtained†his identification card and
“kept it while [he] was filling out the card just to make sure the information
was correct.†While Guyette’s compliance
with the officer’s request that he sit on the curb and identify himself did not
transform the encounter into a detention, once the officer retained Guyette’s
identification document, a reasonable person would not have believed he was
free to get up from the curb and walk away.
Accordingly, contrary to the trial court, we conclude Guyette was
detained.
Suspicion?
A police
officer may lawfully detain a person if the officer knows of specific
articulable facts causing him to suspect that the person detained may be
involved in some activity relating to crime.
(In re Tony C. (1978) 21
Cal.3d 888, 893.) The guiding principle
is the reasonableness of the particular governmental intrusion. In making our determination, we examine the
totality of the circumstances. Where a
reasonable suspicion of criminal activity exists, the public rightfully expects
a police officer to inquire into such circumstances. (People
v. Wells (2006) 38 Cal.4th 1078, 1087.)
The possibility of an innocent explanation does not negate a reasonable
suspicion of criminal conduct. The
principal function of the officer’s investigation is to resolve that ambiguity
and establish whether the activity is in fact legal or illegal. (In re
Tony C., supra, 21 Cal.3d at p.
894.)
Guyette
submits when Pintabona first responded to the scene, he and Hernandez were
merely walking along the sidewalk in an unhurried manner in front of the
business, which was nearby an apartment complex. There was nothing that would make a
reasonable police officer believe that he was involved in a burglary. He cites People
v. Roth (1990) 219 Cal.App.3d 211, People
v. Bailey (1985) 176 Cal.App.3d 402 and In
re Tony C., supra, 21 Cal.3d
888. In Roth, the court concluded there was no reasonable suspicion to
detain Roth where the only ground for the detention was Roth’s 1:20 a.m.
presence in the deserted parking lot of a shopping center whose businesses were
closed. (People v. Roth, supra,
219 Cal.App.3d at p. 215.) Likewise in
articulable reason to detain Bailey when he saw Bailey’s car in the parking lot
of a Sears store that was closed, even though the officer was aware that
persons from a nearby establishment would come to that area to ingest drugs in
their cars. While the officer knew that
some persons committed crimes in the area, he had no basis for believing that
Bailey was doing so. (
any minor seen walking along a public street during school hours was committing
crimes. Nor was it reasonable to suspect
Tony C. and his companion, who were Black, of criminal activity simply because
the officer was aware that several burglaries had occurred in the neighborhood
and that the suspects were “three male [B]lacks†of unspecified ages. (In re
Tony C., supra, 21 Cal.3d at pp. 897-898.)
The cases Guyette cites are
distinguishable because there was no indication of any criminal activity in
progress when the officers detained the defendants. In contrast, in this case, Officer Pintabona
was dispatched to the closed business at 10:45 p.m. in response to an activated
security alarm¾an
indication of criminal activity in progress.
As Pintabona drove up, he saw Guyette and Hernandez walking in front of
the business. Pintabona asked if he
could speak to the men, had them sit on the curb, and asked for their
identification. As he did so, he noticed
that Guyette had a small cut on his forearm.
Meanwhile, Officer Gonzales arrived and discovered a broken window and
an open door at the back of the business.
Pintabona asked if he could search Guyette about a minute and a half or
two minutes after he had him sit on the curb.
The search turned up items that linked Guyette to the break-in.
This case is analogous to
724, in which the court held it was objectively reasonable for the officers to
suspect Lloyd was involved in a burglary.
The officers had found Lloyd standing alone at 4:00 a.m. next to a
business in which a silent alarm had just been triggered. When Lloyd saw the officers, he began walking
away. On these facts, the officers acted
reasonably in stopping and detaining Lloyd as a possible burglary suspect. (Id. at
pp. 733-734.)
The facts of this case present a
typical on-the-street consensual encounter that developed into a detention and
then into an arrest. First, Officer
Pintabona reasonably approached and questioned Guyette to determine if he had
any information in regard to or in connection with the business alarm. Second, while speaking with Guyette,
Pintabona saw that Guyette had a small¾apparently fresh¾cut
on his arm. And, within two minutes of
the initial encounter, Pintabona discovered that Guyette had suspicious items
in his pocket¾a
bent screwdriver and seven screws. Under
the circumstances, Guyette’s presence in front of the business whose alarm had
been triggered, provided reasonable suspicion to detain Guyette and investigate
further.
Guyette contends the trial
court erred in finding that he
consented to the search for two reasons.
First, his consent to the search was tainted by his illegal detention
and, second, substantial evidence does not support the trial court’s
finding. As to his first contention, it
fails because we have concluded that Guyette was legally detained. As to the second contention, the prosecution
bears the burden of showing the defendant’s consent to search was voluntary and
not a mere submission to an assertion of authority. Whether the consent was voluntary presents a
question of fact. We uphold the trial
court’s express or implied findings on the issue where supported by substantial
evidence. (People v. Miller (1999) 69 Cal.App.4th 190, 202-203.)
Guyette contends the record does
not support the finding that he consented to the search by stating “sure†when
Pintabona asked if he could search him.
This is because Pintabona also testified that Guyette did so while
sitting at the curb with his hands on his lap.
However, Guyette testified he could speak only if he covered his
tracheostomy opening in his neck with his finger. Therefore, he could not have said “sure†and
consented to the search while his hands were in his lap. That evidence, coupled with Guyette’s denial
that he had consented to be searched, leads to the conclusion there is no
substantial evidence that he consented to the search of his person.
We disagree. Guyette testified he did not consent to be
searched, Pintabona testified Guyette did consent to be searched, and the trial
court found that Guyette had consented to the search of his person. If there is conflicting testimony, the
reviewing court accepts the trial court’s resolution of disputed facts if those
facts are supported by the record. (
342.) Guyette, in effect, argues that
the court erred in finding the officer credible because it was impossible for
him to talk while his hands were on his lap as the officer testified they
were.
Guyette reads too much into the
sparse record. Officer Pintabona was
never asked whether Guyette used his hand to cover his tracheostomy opening
while consenting to the officer’s request to search. Rather, defense counsel asked Pintabona if
Guyette was “doing anything with his hands†while the officer was speaking to
him. Pintabona responded, “No different
than anybody else. I mean, he wasn’t …
shoving [them] into his pockets. I don’t
understand what you’re referring to.â€
Defense counsel then asked, “Were his hands kind of by his waist as he
was speaking to you?†Officer Pintabona
responded, “They were on his lap.â€
From this exchange, it is not clear
that Guyette did not briefly bring a hand to his neck when consenting to be
searched. Further, Guyette did not say
speech was impossible, rather he testified his speech was “very minimal†if he
did not block the tracheostomy opening with his finger. Pintabona testified Guyette consented to the
search by saying “sure,†a minimal response.
Thus, Guyette has failed to show that the trial court’s finding was not
supported by substantial evidence or
that the trial court erred in finding that he consented to be searched.
Finally, regardless of whether
Guyette properly challenged the legality of his arrest in the trial court, his
claim on appeal fails because his arrest did not result from an illegal
detention or search. Accordingly, the
trial court did not err in denying his motion to suppress evidence.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Cornell, J., and Poochigian, J.
name="_ftn2" title="">[1] All
statutory references are to the Penal Code.
