P. v. Lobato
Filed 1/23/14 P. v. Lobato
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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.
JOE NESTOR LOBATO,
Defendant and Appellant.
H039453
(Santa Clara County
Super. Ct. No. C1242003)
I.
INTRODUCTION
After his
1538.5)
Joe Nestor Lobato pleaded no contest to possession of methamphetamine (Health
& Saf. Code, § 11377, subd. (a)) and being under the influence of
methamphetamine (Health & Saf. Code, § 11550, subd. (a)). The trial court suspended imposition of
sentence and placed defendant on probation
for two years. The court also ordered defendant
to pay a probation supervision fee of up to $110 per month.
On appeal, defendant contends that
the trial court erred in denying his motion to suppress evidence. He argues that he was detained without
reasonable suspicion, in violation of the Fourth Amendment of the
supervision fee, claiming there was insufficient evidence of his ability to pay
the fee. He argues that trial counsel
rendered ineffective assistance for failing to object to the probation
supervision fee. As we will explain, we
will reverse and remand the judgment so that the trial court may determine the
defendant’s ability to
pay the probation supervision fee.
II. FACTUAL
AND PROCEDURAL BACKGROUND
name="_ftnref2" title="">[2]
At 11:41 p.m. on August
11, 2012,
Santa Clara Police
Officers Erickson, Van Diemen, and Henry received a dispatch call reporting an
incident at a residence on the 700 block of Asbury in Santa Clara.
The caller reported seeing someone with a flashlight in a neighbor’s
backyard. The caller mentioned that the
neighbors were away on vacation. The
officers arrived near the reported location approximately 20 minutes after the
dispatch call. Officer Erickson was in
one patrol vehicle, and Officers Van Diemen and Henry followed in a second vehicle.
The officers traveled eastbound on a
two-way residential street, one block from the 700 block of Asbury. As they approached a T-intersection, Officer
Erickson saw a light coming towards him. Defendant was riding his bike northbound towards
the T-intersection. The light was
defendant’s bicycle light. Defendant was
the only person Officer Erickson saw in the area that evening.
Officers Erickson and Van Diemen
shined their vehicles’ spotlights on defendant.
Defendant slowed down his bicycle and came to a stop 20 to 30 yards from
the patrol vehicles. Officer Erickson
parked his car in the T-intersection in the middle of street, and Officer Van Diemen
parked directly behind him. Officer
Erickson did not block defendant’s “direction of travel,†so defendant could
have turned left or right at the T-intersection.
All three officers got out of their
cars, and they walked quickly towards defendant. As the officers approached defendant, they observed
that he was very nervous and sweating profusely. Officer Van Diemen, who was qualified as an
expert in identifying persons under the influence of methamphetamine, noticed “almost
immediately†that defendant displayed objective symptoms of being under the
influence.
Officer Erickson, who stood about 10
feet away, asked defendant if he lived in that area. Defendant replied that he did not live in
that immediate area, but he was heading home.
Defendant indicated that he lived a few blocks away. Officer Erickson then explained that the
officers were investigating a call about a prowler, and he asked defendant for
his identification. Defendant provided
his identification, and Officer Erickson checked to see if defendant had any
warrants.
Officer Erickson asked defendant if
he had anything illegal on him.
Defendant replied “ ‘no.’ â€
Officer Erickson then asked if he could search defendant. Defendant asked “ ‘why?’ †Officer Erickson explained that he was looking
for contraband or weapons. Defendant
asked what would happen if he did not consent to a search. Officer Erickson responded that he was asking
for permission to search, but if defendant did not consent and Officer Erickson
was able to determine another lawful reason to search, then the officer would do
so. Defendant replied, “ ‘Okay,
then. But I have stuff on me.’ †Officer Van Diemen asked what defendant meant
by “ ‘stuff,’ †and defendant said he had methamphetamine on
him.
Officer Van Diemen placed defendant
in handcuffs and searched him. During
the search, Officer Van Diemen found a small baggie containing a clear
crystal-like substance in defendant’s pants pocket. The substance was later tested and identified
as methamphetamine.
On September
28, 2012,
the People filed a complaint charging defendant with possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and being under
the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). On December 21, 2012, defendant filed a
motion to suppress the evidence relating to the search conducted on August 11,
2012, contending that the search was the result of an unlawful detention and
arrest. The People filed opposition,
arguing that the search was a result of a consensual encounter, and
alternatively, that the officers had reasonable suspicion to detain
defendant.
On January 9,
2013, the
trial court held a hearing on the motion to suppress and denied the motion. On February 21, 2013, defendant filed a renewed motion
to suppress pursuant to section 1538.5, subdivision (i). The court denied the motion on March
5, 2013. After his renewed motion to suppress was
denied, defendant pleaded no contest to possession of methamphetamine (Health
& Saf. Code, § 11377, subd. (a)) and being under the influence of
methamphetamine (Health & Saf. Code, § 11550, subd. (a)). The court found him eligible for Proposition
36 probation and referred him to the Department of Alcohol and Drug Services
(DADS) for an assessment.
At the sentencing hearing on March
14, 2013,
the trial court suspended imposition of sentence and placed defendant on
probation for two years. The court
ordered various fines and fees. One of
the fees was a probation supervision fee that was not to exceed $110 per month.
III. DISCUSSION
Suppress
Defendant contends the trial court
erred by denying his motion to suppress.
He argues that he was detained when the three officers, who were driving
two separate cars, shined their spotlights on him, parked their cars in the
middle of the street, “briskly†approached him, and then asked for his
identification. Defendant contends that
the officers did not have reasonable suspicion to detain him because they did
not have a “ ‘particularized and objective basis’ for suspecting him of
involvement in criminal activity.â€
The Attorney General replies that
the initial encounter between the officers and defendant was consensual. The officers “merely shined their spotlights
on [defendant]â€; “[t]he officers did not block [defendant]’s direction of
travelâ€; defendant “voluntarily stopped riding his bicycleâ€; and the officers told
defendant they were investigating a call and asked him questions, which defendant
voluntarily answered. The Attorney General asserts that “[u]nder the
totality of these circumstances, it is evident that until the search began, a
reasonable person in [defendant’s] shoes would have felt free to decline to
answer the officers’ questions and to end the encounter. Thus, there was no detention triggering
Fourth Amendment scrutiny.†In the
alternative, the Attorney General argues that the officers had reasonable
suspicion to detain defendant. “[Defendant]
was riding his bicycle with a light at midnight in an area where there had been
a report of a prowler using a flashlight less than 20 minutes before the police
spotted himâ€; Officer Van Diemen knew that bicycle lights are often detachable;
defendant was the only person the officers saw in the area; defendant indicated
he did not live in the area; and defendant was wearing dark clothing. “Based on the totality of the foregoing
circumstances . . . the officers had reasonable suspicion to detain
[defendant].â€
1.
Proceedings Below
Motion to Suppress
In defendant’s written motion to suppress, he provided
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€].) Defendant argued that the
officers’ identification of him and any evidence that resulted from the
detention and arrest must be suppressed.
In opposition, the prosecutor argued
that the officers’ initial contact with defendant was consensual. The prosecutor argued that after the officers
shined their spotlight, “there was no additional overt action . . . that would
transform this encounter into a detention.â€
Additionally, the prosecutor asserted that “[m]erely approaching
Defendant and asking to speak with him does not constitute a seizure under the
Fourth Amendment.†Alternatively, the
prosecutor argued that the officers had reasonable suspicion to detain
defendant based on the dispatch call they received about a prowler in the area
carrying a flashlight, defendant’s dark clothing, and defendant’s bike light,
which could have been detachable.
At the hearing on the motion to suppress,
defendant highlighted that Officer Van Diemen used the words “ ‘stopped’ â€
and “ ‘detained’ †in the police report and in his testimony to describe
the initial contact. Defendant asserted
that this description of the incident showed that the officer subjectively
believed that the initial contact was a detention, and he argued that the
officer’s belief affected the way the officer interacted with defendant. Defendant also asserted that when the
officers parked their cars in the middle of the street, they blocked his path. Additionally, defendant stated that “[s]potlights
are indicators of detention. Officers
approaching quickly, more than one officer, more than one police car and the
physical taking of someone’s driver’s license or identification during that . .
. warrants check are all indications of a detention.â€
The prosecutor responded that “the
fact that Officer Van Diem[e]n characterized it as a detention in his report is
not dispositive.†The prosecutor also noted,
“Officer Erickson specifically stated in his testimony that he was not blocking
the defendant and that the defendant could have gone around him if he had kept
traveling.†In addition, the prosecutor argued
that the officers’ acts of shining their vehicle spotlights on defendant,
walking towards him, and “simply ask[ing] questions of him†did not constitute
a detention.
The trial court stated that “when
the neighbor calls the police at midnight to report . . . a
flashlight in his neighbor’s backyard, . . . he knows that flashlights at that
hour must be something unusual. Otherwise, why call 9-1-1? . . . [¶] So
I am going to deny the motion for this reason, although it’s fairly close. The detention or so-called detention, I don’t really
think was a detention. The officers are
investigating and they stop very far away from the defendant and he stops on
his own.†The court noted the “white
spotlights alone are not going to be enough. . . . [¶] On the other hand, even if he wasn’t detained,
they do -- the only person in the area at midnight that can be used as a flashlight, which is
[defendant].†[Sic.] “So I think they have
an obligation to stop him, at least, and question him as to why he is in the
area.†The court noted, “if [the
officers] didn’t investigate, they would be derelict in their duties.â€
Renewed Motion to Suppress
In defendant’s renewed motion to
suppress, he argued, as he did in the original motion, that the initial contact
was a detention and that the officers did not have reasonable suspicion. Defendant argued that the report of a prowler
with a flashlight, alone, was “insufficient to establish that criminal activity
was afoot.†Furthermore, defendant
argued that even if the dispatch call was sufficient to establish reasonable
suspicion of criminal activity, the detention was not justified because (1)
there was no description about the possible suspect, (2) the initial contact
occurred 20 minutes after the dispatch call was received, (3) the caller never
mentioned a bike, and (4) defendant did not have a flashlight.
In opposition, the prosecutor first
argued that the initial contact was consensual.
Alternatively, the prosecutor argued that the officers had reasonable
suspicion based on the totality of circumstances. The prosecutor asserted that even if there
was an innocent explanation for the person with a flashlight, “the possibility
of innocent explanations does not remove reasonable suspicion.†The prosecutor also noted that when the
officers saw the light on defendant’s bicycle moving towards them, they could
not tell whether it was a flashlight. Furthermore, defendant was the only person the
officers saw near the area.
At the hearing on the renewed motion
to suppress, the prosecutor called Officer Van Diemen to provide additional
testimony about his experience with bicycle lights, his observations of
defendant’s dark clothing, and his conversation with defendant in which defendant
admitted using drugs earlier that day. Officer Van Diemen testified that
bicycle lights are easily detachable and can be used as a flashlight. The officer also testified that defendant was
wearing dark clothing that evening.
Officer Van Diemen commented that dark clothing makes it easier for a
criminal to remain undetected at night.
After hearing argument, the trial
court denied the renewed motion to suppress.
The court stated that it was “more than satisfied that the officers’
contact was consonant with the Fourth Amendment.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
“Police contacts with individuals
may be placed into three broad categories ranging from the least to the most
intrusive: consensual encounters that
result in no restraint of liberty whatsoever; detentions, which are seizures of
an individual that are strictly limited in duration, scope, and purpose; and
formal arrests or comparable restraints on an individual’s liberty. [Citations.]
Our present inquiry concerns the distinction between consensual
encounters and detentions. Consensual
encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable
suspicion that the person has committed or is about to commit a crime.
[Citation.]
“. . . The United States
Supreme Court has made it clear that a detention does not occur when a police
officer merely approaches an individual on the street and asks a few questions.
[Citation.] As long as a reasonable person would feel
free to disregard the police and go about his or her business, the encounter is
consensual and no reasonable suspicion is required on the part of the
officer. Only when the officer, by means
of physical force or show of authority, in some manner restrains the individual’s
liberty, does a seizure occur.
[Citations.] ‘[I]n order to
determine whether a particular encounter constitutes a seizure, a court must
consider all the circumstances surrounding the encounter to determine whether
the police conduct would have communicated to a reasonable person that the
person was not free to decline the officers’ requests or otherwise terminate
the encounter.’ [Citation.] This test assesses the coercive effect of
police conduct as a whole, rather than emphasizing particular details of that conduct
in isolation. [Citation.] Circumstances establishing a seizure might
include any of the following: 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.
[Citations.] The officer’s
uncommunicated state of mind and the individual citizen’s subjective belief are
irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny
has occurred. [Citation.]†(In re
Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)
Mere police questioning does not amount to an
involuntary detention. (United States v. Drayton (2002) 536 U.S. 194, 200-201 (Drayton).) “Where a consensual encounter has been found,
police may inquire into the contents of pockets [citation]; ask for
identification [citation]; or request the citizen to submit to a search
[citation]. 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 (Franklin).)
Defendant contends his case is analogous to People
v. Garry (2007) 156 Cal.App.4th 1100 (Garry). In Garry, the police officer was in
his patrol car in a “high-crime, high-drug area.†(Id. at p. 1103.) For a few seconds, the officer watched the
defendant standing next to a parked car.
(Id. at pp. 1103-1104.)
After illuminating the defendant with the spotlight on the patrol car,
the officer exited his vehicle and walked so “ ‘briskly’ †that he traveled 35
feet in “ ‘two and a half, three seconds.’ †(Id. at
p. 1111.) The officer disregarded the
defendant’s statement that he was standing outside his own home, and the
officer immediately asked the defendant whether he was on probation or parole. (Id. at pp. 1111-1112.) The Court of Appeal determined that the
police officer’s conduct “taken as a whole, would be very intimidating to any
reasonable person.†(Id. at p.
1111.) “[The officer’s] actions
set an unmistakable ‘tone,’ albeit largely through nonverbal means, ‘indicating
that compliance with the officer’s request might be compelled.’ [Citation.]â€
(Id. at p. 1112.)
The record here reflects that the
tone set by the officers during the encounter with defendant was much different
than that set by the “aggressive†and “intimidating†actions of the officer, as
described by the court in Garry. (Garry,
supra, 156 Cal.App.4th at p. 1112.)
In this case, Officers Erickson, Van Diemen, and Henry were at an
intersection when they saw defendant riding his bicycle towards the
intersection. The officers, who were in
two patrol vehicles, shined their vehicles’ spotlights on him and parked their
cars one behind the other. Defendant
voluntarily slowed down and stopped his bicycle 20 to 30 yards away from the
officers. All three officers then got
out of their cars and walked quickly towards defendant. During this initial contact, the officers did
not use their emergency lights or give any commands. Furthermore, though the officers parked their
cars in a traffic lane, they did not obstruct defendant’s path. The officers also did not have their weapons
drawn, and they stood about 10 feet away from defendant to talk to him.
Officer Erickson engaged in
conversation with defendant, asking defendant whether he lived in the area and explaining
that the officers were investigating a call about a prowler in the
neighborhood. Officer Erickson then
asked to see identification and ran a warrant check. Unlike Garry,
Officer Erickson did not immediately ask whether defendant was on probation
or parole. Nor did he immediately ask to
run a warrant check. Additionally, nothing
in the record indicates that Officer Erickson used an authoritative tone or
engaged in any nonverbal, coercive conduct in questioning defendant. Where cooperation was not induced by coercive
means, merely approaching a person and asking questions does not amount to an
involuntary detention. (Drayton,
supra, 536 U.S. at pp. 200-201; Manuel G., supra, 16 Cal.4th at p.
821.) Further, asking defendant for
identification and running a warrant check did not turn the encounter into a
detention. (Drayton, supra, 536
U.S. at p. 201; Franklin, supra, 192 Cal.App.3d at p. 941.)
Although three officers approached
defendant, the presence of several officers does not, by itself, transform an
encounter into a detention. (See
an encounter on a bus did not turn an encounter into a seizure];
[presence of several agents by exits posed “no reasonable threat of detentionâ€].)
In this case, the officers did not have
their weapons drawn, nor did they engage in any coercive conduct that would make
a reasonable person feel that he or she was not free to leave. (Manuel G., supra, 16 Cal.4th at
p. 821.) Rather, the record reflects
that Officer Erickson asked defendant most of the questions while the other two
officers stood next to Officer Erickson.
In short, the circumstances here do
not show that the officers demonstrated a show of authority such that a
reasonable person in defendant’s situation would not have felt free to
leave. Thus, the initial encounter was
not a detention.
Even assuming that the initial
contact was a detention, the officers had reasonable suspicion to detain
defendant. A detention is reasonable under the Fourth
Amendment when the detaining officer can point to specific articulable facts
which, considered in light of the totality of the circumstances, provide some
objective manifestation that the person detained may be involved in criminal
activity. (People v. Souza
(1994) 9 Cal.4th 224, 231; see also In re Tony C. (1978) 21 Cal.3d
888, 893.) The reasonable suspicion that
justifies a detention is simply a particularized and objective basis for
suspecting the person stopped of criminal activity. (Ornelas v. United States (1996) 517
U.S. 690, 696.)
“Reasonable suspicion is a lesser
standard than probable cause . . . . But to be reasonable, the officer’s
suspicion must be supported by some specific, articulable facts that are ‘reasonably
“consistent with criminal activity.†’ [Citation.]
The officer’s subjective suspicion must
be objectively reasonable, and ‘an investigative stop or detention predicated
on mere curiosity, rumor, or hunch is unlawful, even though the officer may be
acting in complete good faith. [Citation.]’
[Citation.] But where a reasonable suspicion of criminal
activity exists, ‘the public rightfully expects a police officer to inquire
into such circumstances “in the proper exercise of the officer’s duties.†[Citation.]’ [Citation.]†(People v. Wells (2006) 38 Cal.4th 1078,
1083 (Wells); see also
Cal.4th 354, 363.)
In this case, the officers, who were
one block from the location where someone had seen a prowler with a flashlight,
saw defendant riding a bicycle with a bicycle light. Officer Van Diemen knew from experience that
bicycle lights are often detachable and can be used as flashlights. Defendant was also the only person that the
officers saw in the area, and the encounter occurred at midnight, which was only 20 minutes after
the dispatch call. (Cf. People v. Conway (1994) 25 Cal.App.4th 385, 390 [officer had reasonable suspicion
to detain a car’s occupants where, shortly after receiving a report of a
burglary, the officer saw the car leaving the area of the reported burglary].) Defendant was also wearing dark clothing,
which Officer Van Diemen knew to be something a criminal would wear to escape
detection. Under the totality of the circumstances, we find that
the officers’ decision to walk up to defendant was based on “articulable facts
that are ‘reasonably “consistent with criminal activity,†’ †and was not
“predicated on mere curiosity, rumor, or hunch.†(Wells, supra, 38 Cal.4th at p. 1083). Once the officers walked up to defendant, they noticed “almost
immediately†that he was nervous and sweating profusely, which were objective
symptoms of being under the influence of methamphetamine. The officers were thus justified in questioning defendant and requesting identification.
Because the officers acted in an
objectively reasonable manner in contacting defendant, we conclude that the
trial court did not err in denying the motion to suppress. (
Supervision Fee
When
defendant pleaded guilty, he signed a written plea form, which stated that he could
be ordered to pay various fines and fees.
One provision of the plea form stated, “Depending upon my ability to
pay, I will also be required to pay for the costs of probation supervision
($110 a month) . . . .†During the change
of plea hearing, defendant expressed concern about a possible $10 drug testing
fee. He stated that he “might have
trouble with the global fee for testing.†Thereafter, the trial court released
defendant on his own recognizance and referred him to DADS for a Proposition 36
assessment.
Nothing
in the record indicates that a probation report was filed prior to the
sentencing hearing. At sentencing, the
trial court suspended imposition of sentence and placed defendant on formal
probation for two years. The court
ordered him to pay various fines and fees, including a probation supervision
fee “not to exceed 110 per month.â€
Defendant agreed to all the terms and conditions of probation without
objection.
Defendant contends that the
probation supervision fee should be stricken because there was insufficient
evidence of his ability to pay the fee.
Although defendant acknowledges that he did not object in the trial
court, he relies on People v. Pacheco (2010)
187 Cal.App.4th 1392, disapproved by People
v. McCullough (2013) 56 Cal.4th 589 (McCullough), to argue that his claim has not been forfeited. Defendant
alternatively argues that trial counsel was ineffective for failing to object
to the fee.
Relying on McCullough, supra, 56 Cal.4th
589, the Attorney General contends that defendant has forfeited his claim of
insufficiency of the evidence of his ability to pay the probation supervision
fee
v. Snow (2013) 219 Cal.App.4th 1148, 1151; People v. Valtakis (2003) 105 Cal.App.4th 1066 (
trial court made an implied finding that defendant had the ability to pay. Additionally, the Attorney General contends
that trial counsel was not ineffective for failing to object to the fee.
We observe that this case presents a
unique circumstance as nothing in the record indicates a probation report was
filed, and the record contains no information about defendant’s financial
circumstances other than defendant’s concern about a $10 drug testing fee. (Cf.
Section 1203.1b sets forth a process
that must be followed before the trial court may impose a probation supervision
fee. First, the court must order the
defendant to report to the probation officer, who will then make a
determination of the defendant’s ability to pay. (§ 1203.1b, subd. (a).) After the probation officer determines the
amount the defendant may be able to pay, the probation officer must inform the
defendant that he or she is entitled to a hearing, during which the court will
make a determination of the defendant’s ability to pay and the payment amount. (§ 1203.1b, subd. (a).) A defendant may waive his or her right to a
hearing, but this waiver must be made knowingly and intelligently. (§ 1203.1b, subd. (a).) If no waiver is given, the probation officer
must refer the matter back to the trial court, and the trial court will make a
determination of defendant’s ability to pay.
(§ 1203.1b, subd. (b).)
Since the record on appeal does not
include a probation report or any information about defendant’s financial
circumstances, we conclude that this matter must be remanded to the trial court
for compliance with the statute. Thus,
we need not reach the issues of waiver, ineffective assistance of counsel, and
defendant’s ability to pay.
IV. DISPOSITION
The
judgment is reversed and the matter is remanded to the trial court for the
limited purpose of allowing the trial court to follow the statutory procedure
in section 1203.1b before imposing a probation supervision fee.
___________________________________________
Bamattre-Manoukian, ACTING P.J.
WE CONCUR:
__________________________
Márquez, J.
__________________________
GROVER, J.
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are to the Penal Code.
transcript from the preliminary hearing/motion to suppress.
