Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC804203
ELIA, J.On August 11, 2009, pursuant to a negotiated disposition, defendant Charles Grant pleaded guilty to three counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and one count of kidnapping (Pen. Code, § 207, subd. (a)). In exchange for his pleas, defendant was promised a state prison sentence of 11 years "no more/no less."
On September 18, 2009, the court sentenced defendant to 11 years in state prison as per the negotiated disposition and imposed various fines and fees.
Defendant filed a notice of appeal on September 20, 2009, "based on the sentence or other matters occurring after the plea" and "on the denial of a motion to suppress evidence under Penal Code section 1538.5."
We appointed counsel to represent defendant in this court. Counsel filed an opening brief that stated the facts, but raised no specific issues.
On January 28, 2010, we notified defendant of his right to submit written argument on his own behalf within 30 days. To date, we have not received a response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 (87 S.Ct. 1396), we have reviewed the entire record and have concluded that with the exception of errors by the court in announcing the amount of a court security fee, and a criminal conviction assessment fee, there are no arguable issues on appeal, including the two questions that counsel raised to guide our review. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) We have included information about aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.)
Counsel posed the following questions to guide our review. First, was the stop of an automobile driven by a codefendant, in which defendant was a passenger, lawful? Second, was defendant lawfully removed from the vehicle?
The facts are taken from the preliminary hearing transcript, the probation officer's report in this case, and the hearing on defendant's Penal Code section 1538.5 motion.
On April 30, 2008, shortly before 11:40 p.m. Bradley Booth was beginning to walk out of a Rotten Robbie gas station in Santa Clara when two masked men entered the store. One of the men was carrying a rifle. Booth made it outside the store before the man with the rifle grabbed him, brought him back into the store and forced him to lie down behind the counter. Thereafter, the man with the rifle removed Booth's wallet, which contained, among other things, cash, his driver's license and two ATM cards and then pointed his rifle at Getachew Workineh, the cashier, and ordered him to the ground. After Workineh complied, the man with the rifle reached into the pocket of Workineh's pants and took $28 in cash.
There is a discrepancy between the spelling of the clerk's name in the information filed in this case and the probation officer's report. We use the spelling from the information.
Tigist Kebebe was working in the office of the gas station and was ordered out by the men and told to lie on the floor behind the counter. The two men emptied the cash registers for which she was responsible.
Subsequently, at approximately 12:50 a.m. on May 1, while on patrol in a marked patrol car, San Leandro Police Officer Alex Hidas noticed a white Mitsubishi Mirage traveling at a very slow speed near a Quik Stop convenience store. After the vehicle made an unusual wide circle pattern in a nearby residential area, Officer Hidas followed the car for about three blocks at a speed of 35 mph in a 25 mph speed zone. Suspicious that the occupants of the vehicle might be planning to commit a crime against the convenience store, which Officer Hidas knew to be a repeat robbery site, he attempted to stop the vehicle both because of the speeding and to investigate. After the vehicle did not respond to the overhead lights on the patrol car and continued into a shopping center, Officer Hidas used his siren several times in order to force the vehicle to stop. Officer Hidas noticed what he described as furtive movements inside the vehicle as it was stopping.
After another officer joined him, Officer Hidas approached the vehicle and asked the driver to roll down all four windows. There were four people in the car. Officer Hidas identified defendant as one of the passengers; defendant was sitting behind the front seat passenger. Officer Hidas asked the driver of the Mitsubishi why he was in the area and for his driver's license. The driver gave Officer Hidas a California identification card and told him that his license was suspended. The driver apologized for speeding and stated he was trying to get to the freeway to drop off somebody and had just come down highway 880 from Milpitas.
Officer Hidas noticed a strong odor of marijuana coming from the vehicle's interior. Officer Hidas testified he is familiar with the odor of marijuana having smelled it hundreds of times. Officer Hidas asked the driver of the vehicle if he was on probation or parole. The driver said that he was on parole. Officer Hidas confirmed by radio that the information he had been given by the driver was correct and learned that the driver was in fact on parole for robbery. Officer Hidas asked the driver to get out of the vehicle and took him back to the patrol car where he handcuffed him. Officer Hidas searched the driver and discovered $220 folded in half in the front pocket of the driver's pants and a completely empty wallet. In the back pocket of the driver's pants, Officer Hidas found a yellow and black "walkie-talkie, " which Officer Hidas knew was a device sometimes used to communicate between participants in a crime.
Officer Hidas asked defendant to get out of the vehicle and whether or not he had identification. Officer Hidas took defendant back to his patrol vehicle in order to identify him and also determine if he was in possession of marijuana. Officer Hidas asked defendant if he had anything illegal, such as weapons and drugs, either in his possession or in the vehicle. Defendant told him that there was a BB gun in the trunk of the vehicle.
Again, Officer Hidas asked defendant if he had anything illegal and then asked for defendant's permission to conduct a search of his person. Defendant said that he did not have anything illegal and to " 'go ahead.' " Officer Hidas found $850 in cash in the center pocket of defendant's sweat shirt along with a blue wallet containing identification for Bradley Booth and Booth's Citibank card.
A parole search of the vehicle revealed a police scanner tuned to the frequency used by the San Leandro Police Department, which was located on the right front floorboard, two bandanas and another walkie-talkie in the glove compartment and a black ski hat or mask. The trunk of the vehicle contained an air soft gun that looked like an assault rifle.
Procedural History
On August 29, 2008, the Santa Clara County District Attorney filed an information in which defendant was charged with three counts of second degree robbery (count one, Workineh, count two, Booth and count three, Kebebe) and one count of kidnapping for robbery. (Pen. Code, § 209, subd. (b)(1).)
At a hearing held on February 27, 2009, defendant joined a codefendant's motion to suppress the evidence found by Officer Hidas. After an evidentiary hearing, the court found that the initial vehicle stop was justified by Vehicle Code violations; that Officer Hidas immediately learned that the driver was on parole and the search was justified as a parole search. Accordingly, the court denied the motion as to both the driver and defendant.
The codefendant was the driver of the vehicle.
Subsequently, as noted, on August 11, 2009, defendant pleaded guilty to three counts of robbery and one count of kidnapping.
As part of the negotiated disposition, the prosecutor amended the information to charge simple kidnapping rather than kidnapping for robbery.
Before taking defendant's pleas, the court advised defendant of his trial rights, specifically, of his privilege against self-incrimination, his right to confront his accusers and his right to trial by jury as required by Boykin v. Alabama (1969) 395 U.S. 238 (89 S.Ct. 1709), and In re Tahl (1969) 1 Cal.3d 122. Defendant said that he understood and then freely and voluntarily waived those rights. Further, the court advised defendant that he had a right to testify as well as subpoena witnesses. Defendant stated that he understood and gave up those rights. Defendant was advised that he would be placed on parole for three years; that if he violated his parole he could be returned to state prison for up to one year and his parole could be extended for an additional year. The court advised defendant of the possible immigration consequences of his pleas; and that there were other consequences of his plea, including that he would have to pay a restitution fund fine and other fines and fees. Counsel stipulated that there was a factual basis for the pleas contained in the preliminary hearing transcript. The court found defendant's pleas and waivers to be made "knowingly, intelligently and freely."
The Sentencing Hearing
The court sentenced defendant according to the terms of the negotiated disposition. The court imposed the aggravated term of eight years on the kidnapping charge and three consecutive one-year terms (one third the midterm) on the robbery counts. The court awarded defendant 581 days credit for time served. In addition to imposing a general order of restitution, and a court security fee, a criminal conviction assessment fee and a $129.75 criminal justice administration fee, the court ordered defendant to pay $1541 to Rotten Robbie Corporation; $28 to Getachew Workineh, $25 to Bradley Booth and imposed a restitution fund fine of $8800 (Pen. Code, § 1202.4, subd. (b)(2)). The court imposed, but suspended a parole revocation fine in the same amount. (Pen. Code, § 1202.45.) The court advised defendant of a lifetime ban on owning, possessing or having in his custody or control any firearm or ammunition.
Defendant's "worktime" credits were limited to 15 percent by operation of Penal Code section 2933.1 because he was convicted of a felony offense listed in subdivision (c) of Penal Code section 667.5.
When announcing the amount of restitution to be paid to Rotten Robbie Corporation, the court stated that it would be "five hundred and forty one dollars." However, a few moments earlier when sentencing a codefendant, the court stated that restitution would be "one thousand five hundred and forty one dollars... that is a liable [sic] joint and several to Mr. Grant as well as the co-defendant...." We must assume that the court misspoke when it said later "five hundred and forty one dollars." The abstract of judgment reflects the amount is $1541.
In examining the entire record, we found the following errors in the court's oral pronouncement of the amount of the court security fee and the criminal conviction assessment fee -- errors, which in the interest of judicial economy we will address without asking for supplemental briefing. Any party wishing to address these issues may petition for rehearing. (Gov. Code, § 68081.)
In announcing the amount of the court security fee, the court stated that the fee would be "five hundred twenty dollar[s]." Similarly, in announcing the amount of the criminal conviction assessment fee, the court stated that the fee would be "a hundred dollars." Normally, the court's oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) However, with respect to the court security fee, $520 is not authorized by statute. Pursuant to Penal Code section 1465.8, subdivision (a)(1), the court security fee is $30 for every conviction for a criminal offense. Thus, the court should have imposed a $120 court security fee (4 x $30).
Currently, and as it did at the time of defendant's convictions, Penal Code section 1465.8 states, "(a)(1) To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense...."
With respect to the criminal conviction assessment fee, Government Code section 70373 states, "(a)(1) To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense.... The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction." Thus, the criminal conviction assessment fee in this case should have been $120 (4x $30). The court's imposition of a $100 fee was an unauthorized sentence, which we may correct at any time. (See e.g., People v. Scott (1994) 9 Cal.4th 331, 354-355.) Fortunately, the abstract of judgment reflects the correct amount of both fees.
As to the two possible issues to which defense counsel directed this court, "an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law." (People v. Wells (2006) 38 Cal.4th 1078, 1082.) Officer Hidas stopped the car on reasonable suspicion that the driver was speeding. Furthermore, " 'police do not need to have a reasonable suspicion in order to ask questions or request identification, ' " from a "passenger who has been detained during a lawful car stop." (People v. Vibanco (2007) 151 Cal.App.4th 1, 14.) Moreover, "during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk." (Brendlin v. California (2007) 551 U.S. 249, 258 [127 S.Ct. 2400]; accord People v. Hoyos (2007) 41 Cal.4th 872, 892.) Once he was out of the vehicle, defendant consented to be searched. The search of the vehicle was authorized by the codefendant's parole status; Officer Hidas was told by the codefendant that he was on parole for robbery. A police officer may conduct a parole search even without a reasonable suspicion of wrongdoing as long as he is aware that the suspect is subject to a search condition. (Samson v. California (2006) 547 U.S. 843, 852 [126 S.Ct. 2193]; People v. Reyes (1998) 19 Cal.4th 743, 751.) Every parolee has to agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause before he or she is released from prison. (Pen. Code, § 3067; People v. Middleton (2005) 131 Cal.App.4th 732, 740 [both Penal Code section 3067, and the administrative regulations that apply to those on parole for offenses committed before 1997, contemplate that all parolees shall be subject to a search condition].)
In conclusion, our review of the entire record satisfies this court that defendant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
Disposition
The judgment is affirmed.
WE CONCUR RUSHING, P.J., PREMO, J.