Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA064255, Daniel B. Feldstern, Judge.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sarah J. Farhat and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, Acting P. J.
Defendant Salvador Contreras-Dominguez appeals from the judgment entered after he pleaded no contest to possession for sale of cocaine in violation of Health and Safety Code section 11351. He contends that the superior court erred by denying his motion to suppress evidence obtained in police searches he consented to after being stopped in his vehicle and by directing him to pay attorney fees under Penal Code section 987.8, subdivision (b), without notice and a hearing. We affirm the judgment of conviction, concluding the court did not err in denying the motion to suppress, and reverse the judgment as to the imposition of attorney fees and remand the matter for notice and a hearing.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
An information charged Contreras-Dominguez with one count of possession for sale of methamphetamine in violation of Health and Safety Code section 11378 (count 1) and one count of possession for sale of cocaine in violation of Health and Safety Code section 11351 (count 2).
2. The Evidence Presented at the Preliminary Hearing
Prior to the preliminary hearing, Contreras-Dominguez filed a motion to suppress evidence pursuant to Penal Code section 1538.5, subdivision (a). The People presented the following evidence at the preliminary hearing:
In December 2008, Special Agent Peter Johnson of the Drug Enforcement Administration (DEA), a narcotics specialist, began surveillance of Luis Gonzalez Diaz, who was suspected of transporting cocaine. On December 22, 2008, surveillance units observed Diaz drive a red Dodge Neon from his residence with his wife and three children. After running errands with his family, Diaz returned to his residence and then left alone in a Cadillac Escalade. Diaz first stopped in the Escalade at Contreras-Dominguez’s residence on Beaver Street in Sylmar. Diaz pulled into the driveway and “was met” by a Hispanic male at the driver’s side window. This stop lasted approximately two minutes. Diaz then drove from the Beaver Street residence to a hotel in Sun Valley.
Johnson found two aspects of the surveillance of Diaz suggestive of narcotics trafficking. First, Diaz changed cars after returning home with his family. According to Johnson, narcotics traffickers often use different vehicles for their narcotics business than with their families. Second, Diaz stopped at the Beaver Street residence for a short duration and did not leave his vehicle. Johnson said that street-level narcotics dealers stop in places for a short time to do hand-to-hand transactions, often without leaving their vehicles.
In addition, investigation of Diaz’s telephone records revealed that between November 27, 2008, and December 22, 2008, Diaz had called the telephone number of Contreras-Dominguez’s residence 17 times. Fourteen calls were made to Diaz from the telephone number at Contreras-Dominguez’s residence during the same period.
On January 15, 2009, law enforcement officers executed a federal search warrant at Diaz’s residence. The officers found 168 grams of cocaine and $8,000 in suspected narcotics proceeds hidden in a trap inside Diaz’s Escalade. Diaz was arrested. When Johnson showed Diaz a picture of the individual he had met at the hotel in Sun Valley on December 22, 2008, Diaz identified him as “a narcotics customer of mine.”
Based on the surveillance and investigation of Diaz, Johnson opined that Contreras-Dominguez was a possible narcotics supplier for Diaz. The trap inside Diaz’s Escalade suggested to Johnson that Diaz used that vehicle for narcotics transactions. According to Johnson, narcotics traffickers do not make unnecessary trips or stops before they deliver narcotics to a customer. The individual Diaz met at the Sun Valley hotel on December 22, 2008, was a narcotics customer. Because Diaz had stopped at Contreras-Dominguez’s residence in his Escalade on his way to meet a narcotics customer, Johnson suspected that Contreras-Dominguez may be involved in narcotics trafficking with Diaz.
As a result, just more than one hour after Diaz’s arrest, Johnson directed Monrovia Police Officer William Burkhalter, who is assigned to L.A. Impact, a multi-agency task force focusing on narcotics, to stop Contreras-Dominguez in his vehicle. The police did not have a search warrant for Contreras-Dominguez’s residence or property. Burkhalter, who was dressed in plain clothes and driving an unmarked car, pulled over Contreras-Dominguez one hundred yards from his residence on Beaver Street. Burkhalter initially approached the vehicle with his gun drawn but withdrew the gun after seeing that Contreras-Dominguez had nothing in his hands. Contreras-Dominguez exited his vehicle voluntarily, was never handcuffed, and consented to a search of his person for weapons. Four or five other law enforcement officers arrived at the scene, including Johnson. The officers advised Contreras-Dominguez in Spanish of the nature of the investigation and of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Contreras-Dominguez consented to a search of his residence. The stop lasted 15 to 20 minutes.
Without handcuffing Contreras-Dominguez, the officers then transported him to his residence. The officers searched Contreras-Dominguez’s residence and found in his garage approximately 33 grams of methamphetamine, 117 grams of marijuana, and 3 grams of cocaine. Approximately 6 grams of the methamphetamine were packaged in 22 small containers. The officers also found three gram scales, one of which was operational, and unused small plastic baggies. After consenting to speak with the officers without an attorney, Contreras-Dominguez told them that a man had brought the methamphetamine and cocaine to his house and told him to do whatever he wished with it. Contreras-Dominguez admitted that he sold narcotics to four friends in small containers for $20 each.
Los Angeles County Deputy Sheriff John Debets, assigned to L.A. Impact, assisted in the search of Contreras-Dominguez’s residence. For purposes of the preliminary hearing, the parties stipulated that Debets is an expert on narcotics possessed for sales, including methamphetamine and cocaine. Debets opined that Contreras-Dominguez possessed the methamphetamine and cocaine with intent to sell because he had bulk quantities of methamphetamine and cocaine, smaller quantities of methamphetamine that appeared to be packaged for sale, unused baggies that could be used to package smaller amounts, and a gram scale.
After hearing the evidence, the court denied the motion to suppress, concluding that the stop was reasonable and based on sufficient articulated facts to warrant a temporary detention, and ordered Contreras-Dominguez to stand trial.
3. Later Proceedings and the Judgment
Contreras-Dominguez filed a second motion to suppress pursuant to Penal Code section 1538.5, subdivision (i), which the court also denied. He then entered a plea of no contest to possession for sale of cocaine in violation of Health and Safety Code section 11351 (count 2). The court ordered Contreras-Dominguez to serve three years probation, including 180 days in county jail, and to pay $400 in attorney fees pursuant to Penal Code section 987.8, subdivision (b). Contreras-Dominguez timely appealed.
DISCUSSION
1. The Court Properly Denied Contreras-Dominguez’s Motion to Suppress.
Contreras-Dominguez contends that the police lacked reasonable suspicion to detain him in his vehicle and that the court erred by denying his motion to suppress. We disagree.
The Fourth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment, prohibits unreasonable seizures of persons. (People v. Celis (2004) 33 Cal.4th 667, 673.) “‘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.’ [Citation.]” (Ibid.) An automobile stop by the police constitutes a seizure under the Fourth Amendment. (Whren v. United States (1996) 517 U.S. 806, 809-810.)
“[C]ircumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.” (In re Tony C. (1978) 21 Cal.3d 888, 892.) For an investigative detention to be constitutional, the police must have a reasonable suspicion that the person detained is involved in criminal activity. (Id. at p. 893.) The California Supreme Court has summarized the rule as follows: “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, 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.) The detaining officer need not know of the specific basis for an investigative detention as long as the officer who orders the detention has reasonable suspicion of criminal activity. (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553-1556.) The reasonableness of the suspicion is measured by the inferences a trained police officer, not a lay person, would make based on the facts known to the officer before he or she acted. (People v. Hester (2004) 119 Cal.App.4th 376, 386-387.)
In reviewing the denial of a motion to suppress, we defer to factual findings if they are supported by substantial evidence. We exercise our independent judgment to determine whether, as a matter of law, the search or detention was constitutionally reasonable based upon the factual findings. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
With this standard in mind, we conclude that the record provides substantial evidence of specific articulable facts that, considering the totality of the circumstances, would cause a trained police officer to form a reasonable suspicion that Contreras-Dominguez was involved in criminal activity when he was detained. The surveillance of Diaz on December 22, 2008, connected Contreras-Dominguez to Diaz. After switching from the vehicle he drove with his family to another vehicle, Diaz stopped for two minutes in the driveway of Contreras-Dominguez’s residence. A Hispanic male came out from Contreras-Dominguez’s residence and met with Diaz at his driver’s side window. This sequence was meaningful to Johnson, who testified that narcotics traffickers often use different vehicles for their narcotics business than with their families and stop in places for a short time to do hand-to-hand narcotics transactions. The exchange of more than 30 calls between Diaz’s and Contreras-Dominguez’s telephone numbers in a three-week period also connected Contreras-Dominguez to Diaz. To an officer trained in narcotics investigations, such as Johnson, Diaz’s switching of cars, short stop at Contreras-Dominguez’s residence, and telephone calls to Contreras-Dominguez’s residence established a factual background consistent with narcotics trafficking between Diaz and Contreras-Dominguez.
The execution of the federal search warrant at Diaz’s residence on January 15, 2009, produced additional facts suggesting Contreras-Dominguez may have supplied narcotics to Diaz. Police found 168 grams of cocaine at Diaz’s residence and $8,000 cash hidden in a trap inside Diaz’s Escalade. Diaz admitted that the individual he met at the hotel on December 22, 2008, directly after stopping for a short time at Contreras-Dominguez’s residence, was a narcotics customer. Johnson testified that narcotics dealers do not usually make stops unrelated to their narcotics businesses on their way to meet a customer. Johnson thus opined that Contreras-Dominguez was a possible narcotics supplier for Diaz. Given that Diaz possessed substantial amounts of narcotics and suspected narcotics proceeds on January 15, 2009, it was reasonable to infer that his supplier also currently possessed narcotics. Thus, under the totality of the circumstances, a trained police officer would form a reasonable suspicion that Contreras-Dominguez was engaged in ongoing narcotics trafficking when he was detained.
Contreras-Dominguez contends that the brief conversation between Diaz and an unidentified male in front of Contreras-Dominguez’s residence on December 22, 2008, and the string of telephone calls between Diaz and someone at Contreras-Dominguez’s residence, do not indicate that Contreras-Dominguez engaged in criminal activity on January 15, 2009. He contends that Johnson impermissibly ordered the stop of Contreras-Dominguez based on observations made several weeks before the stop.
These contentions fail because they focus too narrowly on isolated pieces of evidence without considering the totality of the circumstances. We must measure the reasonableness of Johnson’s suspicion by the totality of the circumstances that he confronted when he ordered the detention of Contreras-Dominguez. (People v. Souza, supra, 9 Cal.4th at p. 231.) Johnson’s suspicion of Contreras-Dominguez began in December 2008 when surveillance units observed Diaz stop at Contreras-Dominguez’s residence and when Johnson later reviewed Diaz’s telephone records. It was not until January 15, 2009, however, that Johnson learned concretely that Diaz had an ongoing narcotics business, that Diaz met with a narcotics customer right after he stopped at Contreras-Dominguez’s house, and that Contreras-Dominguez was a potential narcotics supplier for Diaz. Johnson ordered the detention of Contreras-Dominguez on January 15, 2009, because it was at that point that Johnson had sufficient evidence to form a reasonable suspicion that Contreras-Dominguez was engaged in narcotics trafficking.
Contreras-Dominguez does not cite any cases to support the proposition that observations made several weeks before an investigative detention may not be used as part of the basis for reasonable suspicion for the detention. Fourth Amendment jurisprudence on investigative detentions is not so inflexible. (See, e.g., United States v. Hensley (1985) 469 U.S. 221 [detention based on “wanted flyer” issued by another police department stating that the defendant was wanted for investigation of an aggravated robbery that occurred 12 days before]; United States v. Sandridge (6th Cir. 2004) 385 F.3d 1032 [detention for driving without a valid driver’s license based on license check conducted 22 days before].) Moreover, focusing solely on the evidence from December 2008 is improper because the totality of the circumstances includes evidence produced from the investigation of Diaz on January 15, 2009, the same day as Contreras-Dominguez’s detention.
2. The Court Erred in Ordering Contreras-Dominguez to Pay Attorney Fees Without Notice and a Hearing.
Contreras-Dominguez contends that the court erred in ordering him to pay attorney fees under Penal Code section 987.8, subdivision (b), without notice and a hearing. We agree.
In pertinent part, section 987.8, subdivision (b), provides: “In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court... the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.” (Pen. Code, § 987.8, subd. (b).) “[A]ny finding of ability to pay must be supported by substantial evidence. [Citations.]” (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398.)
Contreras-Dominguez was provided legal assistance through representation by a public defender. When the court entered the judgment of conviction, it directed Contreras-Dominguez to pay $400 in attorney fees. As the People apparently concede, the court did not conduct a hearing on Contreras-Dominguez’s ability to pay the attorney fees as required by section 987.8, subdivision (b). As a result, we remand for notice and a hearing under section 987.8, subdivision (b). (See People v. Flores (2003) 30 Cal.4th 1059, 1068-1069; People v. Pacheco, supra, 187 Cal.App.4th at p. 1404.)
Under section 987.8, subdivision (g)(2), “‘[a]bility to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant’s present financial position. [¶] (B) The defendant’s reasonably discernable future financial position.... [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county....”
The minute order is ambiguous as to whether the court imposed the attorney fees as a condition of probation. On remand, if the court orders Contreras-Dominguez to pay attorney fees, it cannot impose the fees as a condition of probation. (People v. Bradus (2007) 149 Cal.App.4th 636, 641-642; People v. Faatiliga (1992) 10 Cal.App.4th 1276, 1280 [“Freedom from payment of attorney fees as a condition of probation is founded on the California Constitution’s guarantee of the right to counsel in criminal proceedings”], disapproved on other grounds in People v. Flores, supra, 30 Cal.4th at p. 1068.)
DISPOSITION
The imposition of attorney fees in the judgment is reversed, and the matter is remanded for notice and a hearing under section 987.8, subdivision (b). In all other respects, the judgment is affirmed.
We concur: CHANEY, J., JOHNSON, J.