P. v. Gonzalez
Filed 7/8/13 P. v. Gonzalez CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
TONY ADAM GONZALEZ,
Defendant and
Appellant.
H038070
(Santa Clara
County
Super. Ct.
No. C1114392)
After the
trial court denied his motion to suppress
(Pen. Code, § 1538.5)
name="_ftnref1" title="">[1],
defendant Tony Adam Gonzalez pleaded no contest to
(former § 12021, subd. (a)(1)) and admitted having served three prior
prison terms (§ 667.5, subd. (b)).
The trial court struck the prior prison term allegations and sentenced
defendant to a 16-month prison term.
On appeal,
defendant contends: (1) the trial court
erred by denying his motion to suppress; (2) trial counsel was ineffective for
failing to argue meritorious grounds for the motion to suppress; and (3) the
trial court erred by imposing a booking fee pursuant to Government Code section
29550.1 without finding that he had the ability to pay.
We will
affirm the judgment.
Background
A. Evidence Presented at the
Motion to Suppress
At 6:08 p.m. on August 28, 2011, San Jose Police Officer Allan delaCruz
was on patrol in an area of San Jose
known to be a gang neighborhood.
Defendant
was standing next to a red car. Officer
delaCruz pulled up next to defendant, rolled down his window, and asked if
defendant knew about a recent homicide.
Officer delaCruz noticed that defendant had four dots tattooed on his
hand; he knew that this was a symbol of the Norteño gang. He also noticed that defendant wore his hair
in a ponytail and that defendant was dirty and unkempt.
Officer
delaCruz got out of his car to speak further with defendant. He parked his car within 10 feet of defendant
but did not block defendant with the car.
Officer delaCruz did not draw a weapon or shine a flashlight on
defendant, and he walked slowly. He
asked defendant “what he was up to.â€
Defendant replied that he was getting water for his dog.
Officer
delaCruz asked defendant “if he had any ID.â€
Defendant said he did, then walked around to the passenger side of the
car. He opened the passenger door and
began reaching into the car. Officer
delaCruz told defendant he did not need to get his wallet, saying “come out of
the car.†Officer delaCruz was concerned
that defendant could be “reach[ing] for a weapon.â€
Defendant
ignored the officer and continued reaching into the car with his right
hand. His left hand began to move toward
his waistband area, where it is common for people to conceal weapons. Officer delaCruz again told defendant to
“come out of the car.†He began to walk
toward defendant, and he repeated the same command “several more times.â€
As Officer
delaCruz got closer, defendant came out of the car and walked toward the rear
of the car. Defendant again reached
toward his waistband. Officer delaCruz
yelled for defendant to “stop reaching for the waistband,†but defendant
continued to do so. Defendant also
turned around and bent down, reaching for a spare tire that was on the ground. At that point, Officer delaCruz grabbed
defendant’s arm and walked him toward the patrol car. He asked what defendant was reaching
for. Defendant said a “toy gun.†Officer delaCruz lifted defendant’s shirt and
found a loaded revolver. Defendant had a
box of .38-caliber ammunition on his person.
A computer
assisted dispatch (CAD) report documenting the communication between Officer
delaCruz and dispatch showed that Officer delaCruz first contacted dispatch at
6:08 p.m. At that time, he informed
dispatch of his location and said he was making a pedestrian stop. According to Officer delaCruz, this call was
made after he had already handcuffed defendant. He called again to run defendant’s
identification at 6:09 p.m., one minute and 37 seconds after the first call.
B. Charges, Plea, and
Sentencing
Defendant
was charged, by information, with possession of a firearm by a felon (former §
12021, subd. (a)(1)), possession of ammunition by a prohibited person
(former § 12316, subd. (b)(1)), carrying a loaded firearm by a felon
(former § 12031, subd. (a)(1)), and carrying a concealed firearm by a felon
(former § 12025, subd. (a)(2)). The
information alleged that defendant had served three prior prison terms. (§ 667.5, subd. (b).)
After his
motion to suppress was denied, defendant pleaded no contest to possession of a
firearm by a felon (former § 12021, subd. (a)(1)) and admitted having served
three prior prison terms (§ 667.5, subd. (b)).
The remaining counts were dismissed.
At the
sentencing hearing, the trial court imposed the low term of 16 months and
struck the prior prison term allegations.
It imposed various fees and fines, including a $129.75 criminal justice
administration fee.
title="">[2] (Gov. Code, § 29550.1.)
Discussion
A. Denial of Motion to Suppress
Defendant
contends the trial court erred by denying his motion to suppress. He contends that he was detained when Officer
delaCruz first ordered him to “come out of the car.†Alternatively, defendant asserts that he was
detained when he came out of the car in response to the officer’s repeated
orders. In either case, he contends his
detention was not reasonable under the Fourth Amendment because there were no
“specific articulable facts that, considered in light of the totality of the
circumstances, provide[d] some objective manifestation that [defendant might]
be involved in criminal activity.†(
231 (Souza).) To the extent trial counsel did not make
these specific arguments below, defendant contends he received ineffective
assistance of counsel.
1. Proceedings Below
Defendant’s
written motion to suppress contained a summary of the facts, an allegation that
he was searched without a warrant, and an assertion that it was the
prosecution’s burden to justify the warrantless search. (See People
v. Williams (1999) 20 Cal.4th 119, 130 [“when the basis of a motion to
suppress is a warrantless search or seizure, the requisite specificity is
generally satisfied, in the first instance, if defendants simply assert
the absence of a warrant and make a prima facie showing to support that
assertionâ€].)
In her
written opposition, the prosecutor argued that Officer delaCruz’s initial
contact with defendant was consensual.
She argued that the encounter did not become a detention when the
officer began telling defendant to step out of the car, because defendant did
not actually submit to the officer’s assertion of authority. (See California v. Hodari D. (1991)
499 U.S. 621, 628 (Hodari D.).)
The prosecutor argued that defendant was detained when the officer “took
control of his arms,†and that there was reasonable suspicion for a weapons
search of defendant’s person at that point.
At the
hearing on the motion to suppress, defendant argued that Officer delaCruz’s
account of the events did not “make sense.â€
Trial counsel asserted that Officer delaCruz must have made the first
call to dispatch before approaching defendant.
He argued that the entire event could not have occurred within the short
amount of time between the two calls to dispatch.
The
prosecutor argued that the incident could have occurred in less than a minute
and a half. She argued that there was
reasonable suspicion to search defendant because of his furtive movements, gang
tattoo, and the fact that he was in a high crime area.
The trial
court noted that defendant’s argument depended on discounting the officer’s
testimony, and it found there was no reason to do so. The trial court found that the incident could
have occurred within a short amount of time, and that Officer delaCruz had “a
very good reason to have concerns for his safety†when defendant reached into
the car. The trial court further found
that “any reasonable police officer would have had a suspicion that criminal
activity was afoot the moment the defendant refused to stop reaching into the
car, and then walked around the back of the car.â€
2. Standard of Review
“In
ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether
the law as applied has been violated. [Citation.] We review the court’s resolution of the
factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law
applies to the facts is a mixed question of law and fact that is subject to
independent review. [Citation.]†(People v. Ramos (2004) 34 Cal.4th
494, 505.)
3. Analysis
“The Fourth
Amendment to the United States Constitution prohibits unreasonable searches and
seizures of persons, including unreasonable investigative stops. [Citations.] With respect to seizures, ‘[a]
seizure occurs whenever a police officer “by means of physical force or show of
authority†restrains the liberty of a person to walk away.’ [Citations.]†(People
v. Vibanco (2007) 151 Cal.App.4th 1, 8 (Vibanco).) Before an officer can detain someone, there
must be reasonable suspicion to believe that the person is engaged in criminal
activity. “[T]he temporary detention of
a person for the purpose of investigating possible criminal activity may,
because it is less intrusive than an arrest, be based on ‘some objective
manifestation’ that criminal activity is afoot and that the person to be
stopped is engaged in that activity.
[Citations.]†(
The first
question in this case is when
defendant was detained for purposes of the Fourth Amendment. Defendant does not dispute that he was not
detained when Officer delaCruz initially spoke to him and asked “if he had any
ID.†(See Vibanco, supra, 151 Cal.App.4th at p. 13 [a police officer can “
‘talk to anyone he encounters while regularly performing his duties’ †and
can “ ‘ask a person for identification without implicating the Fourth
Amendment’ â€].)
Defendant asserts that he was detained when
Officer delaCruz first ordered him to come out of the car. He asserts that a reasonable person “would
to leave,’ †rendering the encounter a detention.
In
States Supreme Court clarified that a detention does not necessarily occur
when, due to a show of authority by police, “ ‘a reasonable person would have
believed that he was not free to leave.’ â€
(Hodari D., supra, 499 U.S. at
p. 628, quoting United States v. Mendenhall (1980) 446 U.S. 544,
554.) The Court explained that this test
“states a necessary, but not a sufficient, condition for
seizure.†(Ibid.) If “the subject does
not yield†to the officer’s show of authority, no seizure occurs. (Id.
at p. 626; see also Terry v. Ohio
(1968) 392 U.S. 1, 20, fn. 16 [“Only when the officer, by means of physical
force or show of authority, has in some way restrained the liberty of a citizen
may we conclude that a ‘seizure’ has occurred.â€]; U.S. v. Baldwin (2d Cir. 2007) 496 F.3d 215, 218 [“We have
understood the import of Hodari D. to be that ‘an order to stop must be
obeyed or enforced physically to constitute a seizure.’ â€].)
Based on
the principles stated in Hodari D.,
we disagree with defendant’s claim that he was detained when Officer delaCruz
first ordered him to come out of the car.
Even if a reasonable person would not have felt as if he or she was free
to leave, the encounter was not a detention at that point because defendant did
not actually “yield†to the officer’s “show of authority.†(Hodari
D., supra, 499 U.S. at p. 626.)
Instead, defendant ignored the officer’s directive and continued
reaching into the car. (See
1, 10 [defendant was not detained when he ignored officer’s command to “ ‘
“Come down towards me,†’ †even if reasonable person would have felt he or she
was not free to leave].)
Alternatively,
defendant claims that he came out of the car in response to the officer’s
repeated orders and that he was detained at that point. Defendant acknowledges that he then walked
away from the officer but contends that he was still complying with the
officer’s command, since the officer did not specify where he was to go other
than “out of the car.â€
The
Attorney General argues that defendant was not actually detained until
Officer delaCruz grabbed his arm, because defendant did not comply with
the officer’s further commands and thus never submitted to the officer’s “show
of authority.†(See Hodari D., supra, 499 U.S. at p. 626.)
We agree
with the Attorney General that defendant was not detained until Officer
delaCruz applied physical force to effect the seizure. Although defendant did eventually “come out
of the car,†the record does not support defendant’s claim that he necessarily
did so in submission to the officer’s show of authority. Rather, the record supports a finding that
defendant moved out of the car in response to the officer’s approach. As Officer delaCruz testified, defendant did
not respond to his repeated commands until the officer got close to him: “At that point he did come out of the car and
started walking towards the rear of the vehicle.†Importantly, as he walked away, defendant
continued to ignore the officer’s further command to “stop reaching for the waistband.†Thus, defendant never actually “yield[ed]†to
the officer’s “show of authority†(Hodari
D., supra, 499 U.S. at p. 626) and was not detained until Officer delaCruz
grabbed his arm.
As the
trial court found, reasonable suspicion supported the detention and pat-search
for weapons at the time Officer delaCruz grabbed defendant’s arm. Based on defendant’s behavior in refusing to
come out of the car and reaching toward his waistband, together with the fact
that defendant had a gang tattoo and was in a known gang area where a recent
homicide had occurred, a reasonable officer would have suspected that defendant
might be armed. (See
146 [“Officers in an area plagued by violent gang activity need not ignore the
reality that persons who commit crimes there are likely to be armed.â€];
1232, 1241 [detention and pat-down lawful where defendant was in a gang
neighborhood at night and reached back into his pockets after being ordered to
show his hands].)
We conclude
the trial court did not err by denying defendant’s motion to suppress. Further, since we have found no merit to
defendant’s arguments, we conclude that trial counsel was not ineffective for
failing to make those arguments below.
B. Booking Fee
As noted
above, the trial court imposed a $129.75 criminal justice administration fee at
sentencing pursuant to Government Code section 29550.1. Defendant contends that although this section
does not expressly require the trial court to find a defendant has the ability
to pay the fee before ordering payment, the
and federal Constitutions require the section to be interpreted as including an
ability-to-pay requirement. Defendant
further contends that the court below did not make an inquiry into his ability
to pay, and that there was no evidence to support a finding that he had an
ability to pay. Although he did not
object to the fee below, defendant argues that his appellate claim for
insufficiency of the evidence has not been forfeited. Alternatively, defendant contends that trial
counsel was ineffective for failing to object.
He also contends the issue is cognizable because it involves a pure question
of law.
The
Attorney General contends that defendant has forfeited his claim of
insufficiency of the evidence concerning the ability to pay. The Attorney General further argues that the
trial court made an implied finding that defendant had the ability to pay the
fee, and that principles of equal protection do not require us to interpret
Government Code section 29550.1 as including an ability-to-pay provision.
The
California Supreme Court recently held that, by failing to object below, a
defendant forfeits an appellate claim that he or she lacks the ability to pay a
booking fee imposed pursuant to Government Code section 29550.2. (People
v. McCullough (2013) 56 Cal.4th 589.) In this case, defendant’s challenge to the
booking fee raises the initial question of whether
Government Code section 29550.1 to be interpreted as including an
ability-to-pay requirement. The
forfeiture doctrine has been applied to unpreserved equal protection
claims. (See, e.g., People v.
Alexander (2010) 49 Cal.4th 846, 880, fn. 14.) However, an appellate court may reach
the merits of a constitutional claim when it is “ ‘one of law presented by
undisputed facts in the record . . . that does not require the scrutiny of
individual circumstances, but instead requires the review of abstract and
generalized legal concepts. . . .’ â€
(People v. Delacy (2011) 192 Cal.App.4th 1481, 1493; see In re
Spencer S. (2009) 176 Cal.App.4th 1315, 1323; In re Sheena K. (2007)
40 Cal.4th 875, 887-888 & fn. 7.)
Assuming,
without deciding, that defendant may challenge the criminal justice
administration fee for the first time on appeal, we determine that the trial
court was not required under equal protection principles to consider
defendant’s ability to pay. Government
Code sections 29550, 29550.1, and 29550.2 authorize the imposition of a
criminal justice administration fee on an arrestee who is ultimately convicted,
in order to cover the expenses involved in booking or otherwise processing the
arrestee in a county jail. Government
Code sections 29550 and 29550.2 expressly require a finding that the person has
the ability to pay the fee when the fee is imposed under certain circumstances.
(See Gov. Code, §§ 29550, subd. (d)(2), 29550.2, subd. (a).) Government Code section 29550.1, the
statute which authorizes imposition of the fee on defendant in this case, does
not contain an express ability-to-pay requirement. According to defendant, the absence of an
ability-to-pay requirement in Government Code section 29550.1 violates his
state and federal rights to equal protection.
To
prevail on an equal protection claim, a defendant must first establish that the
state has adopted a classification that affects two or more similarly situated
groups in an unequal manner. (People
v. Brown (2012) 54 Cal.4th 314, 328; People v. Hofsheier (2006) 37
Cal.4th 1185, 1199 (Hofsheier).)
Unless the statutory distinction at issue involves a suspect
classification, touches upon a fundamental interest, or is based on gender,
most equal protection challenges are analyzed under the rational relationship
test. (Hofsheier, supra, at p.
1200.) Defendant in this case asserts
that the statutory scheme fails the rational relationship test. Under this test, “ ‘ “ ‘a statutory
classification . . . must be upheld against equal protection challenge if there
is any reasonably conceivable state of facts that could provide a rational
basis for the classification. [Citations.]
Where there are “plausible reasons†for [the classification], “our
inquiry is at an end.†’ †’ [Citations.]â€
(Id. at pp. 1200-1201, italics omitted.)
Arguably,
persons subject to Government Code section 29550.1 and those subject to
Government Code sections 29550 and 29550.2 are not similarly situated. Counties typically operate the jails and bear
the expense of providing for persons held there. (Gov. Code, § 29602, §§ 4000, 4015; City
of San Jose v. State of California (1996) 45 Cal.App.4th 1802,
1813-1814.) Under Government Code
section 29550, subdivision (c), a county may recover its “actual administrative
costs†directly from the arrested person if the person was arrested by county
personnel. The county may also recover
its actual costs directly from the arrested person when the arrest was made by
a governmental entity not specified in Government Code sections 29550 or
29550.1, which would include state law enforcement agencies. (Gov. Code, § 29550.2, subd. (a).) But where the arrest was made by a “city,
special district, school district, community college district, college, or
university,†the county may impose a fee on that local arresting entity for no
more than “one-half†of the county’s “actual administrative costs.†(Gov. Code, § 29550,
subd. (a)(1).) Under Government
Code section 29550.1, the local arresting entity may, in turn, recover from the
arrested person the fee “imposed by a county.â€
(Gov. Code, § 29550.1.)
Thus, someone like defendant, who was arrested by a local entity such as
San Jose police, is liable for one-half the amount for which county or state
arrestees are liable. Therefore,
arguably, the local arrestee and the county and state arrestees are not
similarly situated.
Even if
these classes of arrestees were similarly situated for purposes of the law,
there is a conceivable rational basis for the differential treatment. Although a person arrested by a local entity
will be required to pay a criminal justice administration fee even absent an
ability-to-pay finding, and other arrestees will not have to pay the fee if
they do not have the ability, the local arrestee has the benefit of being
charged one-half the amount that other arrestees are charged. The Legislature could rationally have
concluded that imposing an ability-to-pay condition in cases of county and
state arrestees but omitting it as to local arrestees was reasonable because
the former are exposed to a potential debt two times the size of that the
latter will have to pay. This is a
plausible basis for the differential treatment.
Accordingly,
we conclude that equal protection principles did not require the
trial court to determine defendant’s ability to pay before imposing a
criminal justice administration fee payable to the City of San Jose. (See Gov. Code, § 29550.1; Hofsheier,
supra, 37 Cal.4th at pp. 1199, 1200-1201.)
In view of our conclusion, we do not reach defendant’s contentions
concerning the court’s failure to make an inquiry concerning his ability to pay
and the purported lack of evidence of his ability to pay.
Disposition
The
judgment is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
________________________________
ELIA, ACTING P.J.
________________________________
Márquez,
J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title=""> [2]
The criminal justice administration fee is also known as a “booking fee.†(See People
v. Pacheco (2010) 187 Cal.App.4th 1392, 1399.) We will use both terms interchangeably.
