Opinion
E052830
12-06-2011
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY WILLIAM JACQUEMAIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. RIF152654)
OPINION
APPEAL from the Superior Court of Riverside County. Janet I. Kintner, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant Timothy William Jacquemain pled guilty to attempted murder (Pen. Code, §§ 664, 187, subd. (a)) with the personal use of a firearm (§ 12022.5, subd. (a)). In return, the remaining allegations were dismissed, and defendant was sentenced to the stipulated term of 15 years in state prison with credit for time served. Defendant's sole contention on appeal is that the trial court erred in denying his suppression motion. (§ 1538.5.) We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the suppression hearing.
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On September 15, 2009, Corona Police Department Sergeant Alex Marmolejo was on duty and had received information regarding two robberies that had occurred earlier in the day at Denny's restaurants located near freeways. The first robbery occurred in Rowland Heights and the second in Pomona. The suspect was described as a White male adult about five feet five inches tall, driving a green Cadillac. Later that evening, Sergeant Marmolejo received information regarding an assault with a firearm that had occurred in Home Gardens. The suspects were described as four Hispanic males and one White male, driving an older black Chevrolet Monte Carlo or Cadillac. One suspect was seen wearing black clothing, and one was wearing a dark baseball cap, light bandana, and a long-sleeved checkered shirt.
About 11:45 p.m., Sergeant Marmolejo responded to a robbery of a Denny's restaurant near Interstate 15 involving a gun. The suspects in this incident were described as two White males in their 20's. One suspect was seen wearing a white baseball cap, blue and white flannel shirt, and blue jeans. The driver was seen wearing a black shirt.
Thereafter, Sergeant Marmolejo set up surveillance on Interstate 15 at the Magnolia on-ramp, within a couple miles of the latest robbery location. Less than five minutes later, Sergeant Marmolejo observed a 1970's green two-door Chevrolet Monte Carlo traveling northbound, which was the only green Monte Carlo that Sergeant Marmolejo had seen that night. Sergeant Marmolejo had previously owned a two-door 1972 Monte Carlo and noted that Monte Carlos are often mistaken for Cadillacs. Sergeant Marmolejo became suspicious and began following the vehicle as it proceeded northbound on Interstate 15. At some point, Sergeant Marmolejo ran the vehicle's license plate through dispatch and discovered the vehicle was registered to defendant, who lived in Pomona. This raised Sergeant Marmolejo's suspicions even further.
Sergeant Marmolejo continued to follow the vehicle until backup units arrived. He then initiated a traffic stop of defendant's vehicle to investigate whether or not the occupants were involved in criminal activity. When the vehicle stopped, Sergeant Marmolejo "called the driver out." His gun was not drawn, and he was not speaking on a loudspeaker. The driver, identified as defendant, stepped out of the vehicle. On his own volition, he placed his hands in the air and turned around. Sergeant Marmolejo directed defendant to him. Defendant complied. There were three other occupants in the vehicle. Once defendant reached the patrol cars, one of the other passengers "jumped in the driver's seat" of defendant's vehicle and took off.
Sergeant Marmolejo acknowledged that defendant was tall, "definitely" taller than five feet five inches. He also noted that the vehicle was "medium green" in color.
Defendant filed a suppression motion, arguing the stop, detention, and arrest were unlawful. The People subsequently filed an opposition, asserting the police had reasonable suspicion to stop defendant's vehicle based on specific articulable facts.
The trial court denied defendant's suppression motion, finding Sergeant Marmolejo had reasonable suspicion to stop defendant's vehicle.
II
DISCUSSION
Defendant contends that the trial court erred in denying his suppression motion because the vehicle stop was unlawful and unsupported by reasonable suspicion, since the information upon which it was based was not reliable but based on mere speculation or hunch. We disagree.
The standard of appellate review of a trial court's ruling on a motion to suppress evidence is well established. In reviewing the denial of a suppression motion pursuant to section 1538.5, we evaluate the trial court's express or implied factual findings to determine whether they are supported by substantial evidence, but we exercise our independent judgment to determine whether, on the facts found, defendant's Fourth Amendment rights have been violated. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Williams (1988) 45 Cal.3d 1268, 1301.)
In assessing the reasonableness of searches and seizures, we apply federal constitutional standards. (People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. 8.) At trial, the "prosecution has the burden of establishing the reasonableness of a warrantless search." (People v. Jenkins (2000) 22 Cal.4th 900, 972.) On appeal, it is defendant's burden to demonstrate error. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) We review the evidence in the light most favorable to the trial court's ruling. (People v. Renteria (1992) 2 Cal.App.4th 440, 442.) We will affirm that ruling if it is correct on any applicable legal theory. Our review is confined to the trial court's ruling, not the reasons given for its ruling. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
The issue before us is whether the sergeant had a sufficient quantum of information to establish reasonable suspicion to justify the investigatory stop at its inception.
The Fourth Amendment guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8-9 [88 S.Ct. 1868, 20 L.Ed.2d 889].) An officer may, however, stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by specific and articulable facts, that criminal activity is afoot and that the person to be stopped is engaged in that activity, even if the officer lacks probable cause to arrest. (Illinois v. Wardlow (2000) 528 U.S. 119, 123-124 [120 S.Ct. 673, 145 L.Ed.2d 570]; United States v. Sokolow (1989) 490 U.S. 1, 7 [109 S.Ct. 1581, 104 L.Ed.2d 1]; Terry, at p. 21; People v. Souza (1994) 9 Cal.4th 224, 237-238.) "Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause . . . ." (People v. Wells (2006) 38 Cal.4th 1078, 1083.) By "allowing such detentions, Terry accepts the risk that officers may stop innocent people." (Wardlow, at p. 126.)
"The guiding principle in determining the propriety of an investigatory detention is 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' [Citations.] In making our determination, we examine 'the totality of the circumstances' in each case. [Citations.]" (People v. Wells, supra, 38 Cal.4th at p. 1083.) The concept of reasonable suspicion cannot be reduced to "'a neat set of legal rules.' [Citation.]" (United States v. Sokolow, supra, 490 U.S. at p. 7.) It "can arise from less reliable information than required for probable cause, including an anonymous tip. [Citation.]" (Wells, at p. 1083.) "The officer, of course, must be able to articulate something more than an 'inchoate and unparticularized suspicion or "hunch."' [Citation.] The Fourth Amendment requires 'some minimal level of objective justification' for making the stop. [Citation.]" (Sokolow, at p. 7.)
To justify an investigative stop or detention, the detaining officers, based on the whole picture, must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. (United States v. Sokolow, supra, 490 U.S. at p. 7.) The officer's suspicion must be objectively reasonable and cannot be based on curiosity, rumor, or hunch, even though the officer is acting in good faith. (In re Tony C. (1978) 21 Cal.3d 888, 893, superseded by statute on other grounds as stated in In re Christopher B. (1990) 219 Cal.App.3d 455, 460, fn. 2.) The guiding principle is "'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" (Id. at p. 892.) In other words, while police are not allowed to act on mere hunches, curiosity, or vague descriptions, a more particularized description, together with additional circumstances known to the officer, may justify a detention. (In re Carlos M. (1990) 220 Cal.App.3d 372, 381-382.)
The investigatory search at issue here was based on Sergeant Marmolejo's reasonable and articulated suspicions: On September 15, 2009, after receiving information from police dispatch concerning robberies that had occurred earlier in the day at Denny's restaurants located near freeways in Rowland Heights and Pomona, Sergeant Marmolejo, who was on duty, began actively searching for the suspect vehicle. Sergeant Marmolejo was aware that the suspect vehicle was either a green or black Monte Carlo or Cadillac. Based on personal experience, he also knew that Monte Carlos have a similar body shape and could easily be mistaken for a Cadillac. One of the suspects in the robberies was described as a White male adult about five feet five inches tall. Later that evening, Sergeant Marmolejo received information regarding an assault with a firearm that had occurred in Home Gardens. The suspects were described as four Hispanic males and one White male, driving an older black Chevy Monte Carlo or Cadillac. Subsequently, after receiving information of yet another robbery involving a gun of a Denny's restaurant in Corona near Interstate 15 by two White males in their 20's, Sergeant Marmolejo set up surveillance on Interstate 15 at the Magnolia on-ramp, within a couple miles of the latest robbery location. Within five minutes, Sergeant Marmolejo observed a 1970's green two-door Chevrolet Monte Carlo, a vehicle he believed matched the general description, traveling northbound. This was the only green Monte Carlo vehicle in that area at that time of the night. Sergeant Marmolejo became suspicious and began following the vehicle as it proceeded northbound on Interstate 15. His suspicion was further heightened after discovering the vehicle was registered to defendant, who lived in Pomona, the site of the second robbery. The robberies and the shooting all occurred on the same night and involved a similar suspect vehicle. With assistance from additional units, Sergeant Marmolejo thereafter initiated a traffic stop of defendant's vehicle to investigate whether or not the occupants were involved in criminal activity.
The officer's decision to stop defendant's vehicle was based on specific, articulable facts about the shooting and robbery suspect's vehicle and was reasonable under the circumstances. (See People v. Marquez (1992) 1 Cal.4th 553, 578; People v. Harris (1975) 15 Cal.3d 384, 389; People v. Remiro (1979) 89 Cal.App.3d 809, 828.) A vague description will not, on its own, provide reasonable grounds to detain all persons falling within that description. However, "the more particularized description, . . . together with the additional circumstances known to the officer (i.e., defendant's presence within [a couple miles] of the crime site, within [five minutes] of the crime report . . .) amply justified the detention . . . ." (In re Carlos M., supra, 220 Cal.App.3d 372, 381-382.) A general description is sufficient justification for stopping and questioning persons meeting that description. (People v. Craig (1978) 86 Cal.App.3d 905, 911.) Even an anonymous telephone call has been deemed sufficiently reliable to justify a stop and detention of a suspect. (People v. Dolly (2007) 40 Cal.4th 458, 467; In re Richard G. (2009) 173 Cal.App.4th 1252, 1257-1258.)
We also note that slight discrepancies between the described vehicle and the stopped vehicle are insufficient to render a stop illegal. For example, in United States v. Abdus-Price (D.C. Cir. 2008) 518 F.3d 926, the police received a report of a robbery involving Ford Crown Victoria that was tan on one side and black on top with smoked out windows. Two blocks from scene of robbery, officers pulled over a dark blue Crown Victoria with tinted windows and a white side door. The court held that the slight color discrepancy was insufficient to challenge the legality of the stop because of the remaining points of similarity, combined with the vehicle's proximity to the crime scene. (Id. at pp. 930-931.) The court explained a reasonable officer would infer that the victim of an armed robbery might not exercise perfect recall when describing the color of the getaway vehicle. (Id. at p. 930.)
So too here. The information conveyed to the police by the eyewitnesses of the robberies and the shooting was sufficiently reliable to justify the officer's reasonable suspicion that "criminal activity was afoot," particularly in light of the fact that defendant's markedly similar vehicle was spotted within a couple of miles of the Corona robbery, headed away from that location. Moreover, the description of the vehicle and suspects were fairly specific, and the 911 calls were not anonymous.
Defendant's reliance on People v. Hernandez (2008) 45 Cal.4th 295 to support his argument that Sergeant Marmolejo lacked reasonable suspicion to stop his vehicle is misplaced. In Hernandez, the officer stopped a truck for having no license plates, even though he had seen a valid temporary permit on the back windshield. (Id. at p. 297.) Rejecting the People's argument that the officer had acted reasonably because, in his experience, temporary permits are often forged or displayed on vehicles for which they were not issued, the court explained, "An officer who sees a vehicle displaying a temporary operating permit in lieu of license plates may not stop the vehicle simply because he or she believes that such permits are often forged or otherwise invalid. To support a stop the officer must have a reasonable suspicion that the particular permit is invalid. Otherwise, any vehicle with such a permit could be stopped without particularized cause." (Ibid.; see also People v. Nabong (2004) 115 Cal.App.4th Supp. 1, 2-3.)
Defendant also relies on People v. Maikhio (2010) 180 Cal.App.4th 1178 [Fourth. Dist., Div. One]. However, our Supreme Court granted review of that case on April 28, 2010, and reversed the judgment of the Court of Appeal. (People v. Maikhio (2011) 51 Cal.4th 1074.) The Supreme Court in reversing Division One of this court concluded: "In light of the importance of the state interest served by such a stop, and the practical need to be able to make such a stop and demand even when there is not reasonable suspicion that an angler or hunter has violated a statute or regulation, we conclude that when a game warden reasonably believes that an occupant of a vehicle has recently been fishing or hunting, the warden does not violate the Fourth Amendment by stopping the vehicle to demand the display of all fish or game that have been taken." (Id. at p. 1098.)
People v. Durazo (2004) 124 Cal.App.4th 728 also does not support defendant's argument that his Fourth Amendment protection against unreasonable seizures was violated by the sergeant's stop of defendant's vehicle on a public highway. In that case, the appellate court merely acknowledged that the deputy who was following Durazo's vehicle for three miles without incident could not stop the vehicle based solely on a "'gut feeling' that Durazo and his passenger were involved in criminal activity" (id. at p. 735) in the absence of an observance of any traffic or equipment violations that would justify a traffic stop. (Id. at pp. 731, 735, 737.) Unlike the situation in Durazo, in this case the sergeant acted lawfully. Sergeant Marmolejo stopped defendant's vehicle, which matched the reported description of the suspect vehicle, within a few miles from the Corona robbery and less than five minutes after setting up surveillance.
On this record, we conclude that, under the circumstances the investigatory stop was valid and based on particularized suspicions supported by reasonably reliable evidence.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.