Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. VA096570. Thomas McKnew, Jr., Judge.
Lynette Gladd Moore, 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, Paul M. Roadarmel, Jr., Rama R. Maline and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Ramon Callo Palacios appeals his conviction for conspiracy to commit assault with a firearm and other crimes.
On August 1, 2006, appellant was driving with two passengers around 1:40 a.m., in an area of Artesia frequented by a street gang called Artesia or “Arta.” A sheriff’s deputy stopped the car for an illegal left turn and found a loaded, operable handgun inside it. Arta and a rival gang, Varrio Hawaiian Gardens (Hawaiian Gardens), were engaged in active gang warfare at this time. Arta had done more of the shooting, and the sheriff’s department expected retaliation from Hawaiian Gardens. Appellant confessed that the gun was his and he came to that area with his companions to shoot members of Arta. The gang expert testified that appellant was “an affiliate” of Hawaiian Gardens, and the two passengers in the car belonged to that gang.
Appellant contends that (1) the search of his car violated the Fourth Amendment to the United States Constitution, (2) he was denied his right to the effective assistance of counsel, (3) this court must review the in camera proceedings that were held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), (4) concurrent sentences on two of the counts violated Penal Code section 654 and due process of law, and (5) the minute order of the sentencing proceedings and the abstract of judgment must be corrected to show the correct crime in count 1.
Further code references are to the Penal Code unless otherwise stated.
We order the corrections for the crime in count 1 and otherwise affirm.
PROCEDURAL HISTORY
Count 1 of the amended information charged appellant with conspiracy to commit an assault with a semiautomatic firearm (§§ 182, subd. (a)(1), 245, subd. (b)). Count 2 charged having a concealed firearm in a vehicle (§ 12025, subd. (a)(1)). Count 3 charged carrying a loaded, unregistered firearm (§ 12031, subd. (a)(1)). Count 4 charged conspiracy to commit murder (§§ 182, subd. (a)(1), 187). All four counts also alleged that a principal was armed with a firearm (§ 12022, subd. (a)(1)), and the crimes were committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)).
The jury found appellant guilty on counts 2 and 3 and found the gang allegations on those counts to be true. It deadlocked on counts 1 and 4. Count 4 was later dismissed. Pursuant to a plea bargain, the crime in count 1 was amended from conspiracy to commit assault with a semiautomatic firearm (§ 245, subd. (b)) to conspiracy to commit assault with a firearm (id., subd. (a)(2)). The agreement was for a total prison sentence of eight years on count 1, based on the midterm of three years, plus five years for the gang enhancement. The remaining enhancement allegation on count 1 was to be dismissed, and “concurrent time” on counts 2 and 3. Appellant pled guilty pursuant to the agreement and was sentenced accordingly. He filed a notice of appeal from the judgment.
DISCUSSION
1. The Fourth Amendment Issue
A. Evidence at the Section 1538.5 Hearing
Sheriff’s Deputy Brian Jones and appellant gave conflicting testimony about whether appellant consented to the search of his car.
Deputy Jones testified that he was driving alone in a patrol car in the City of Artesia at around 1:40 a.m. on August 1, 2006. He saw appellant’s car and ran its license plate on his computer, ascertaining that appellant owned the car and there were no warrants for it. He put on his emergency lights to stop the car when he saw it make a left turn “without signaling and also without utilizing the designated left-hand turn lane,” in violation of Vehicle Code section 22100, subdivision (b).
After Deputy Jones activated his emergency lights, it took appellant “20 to 30 seconds” to stop. Jones walked up to the driver’s door. Two other men were in the car with appellant. Jones told appellant he had stopped him for making an illegal and unsafe left turn. Jones then asked appellant and his passengers where they lived. Appellant gave an address in east Lakewood, bordering Hawaiian Gardens. The two passengers lived in Hawaiian Gardens. The occupants of the car were wearing extremely baggy clothing that was characteristic of gang members. Jones radioed for backup officers due to the combination of where the car’s occupants lived, how they were dressed, recent gang graffiti in the area, the time of night, and “the ongoing gang shoot-outs that ha[d] been sparring back and forth between Hawaii[a]n Gardens and Artesia....”
While waiting for backup, Deputy Jones stood next to the driver’s door and asked appellant questions. Appellant responded that the car belonged to him, he was the only person who had driven it that day, and everything inside it belonged to him. Jones asked for appellant’s driver’s license, and appellant provided it.
“Approximately one minute” after Deputy Jones called for backup, “quite a few” backup officers arrived, Jones made appellant leave the car. He patted him down for weapons and had him sit in the rear seat of Jones’s patrol car, without handcuffs. Other deputies had the two passengers leave appellant’s car. As soon as appellant was seated in the patrol car, “one to two minutes after” appellant left his own car, Deputy Jones requested consent to search appellant’s car. Appellant gave his consent. Jones searched the car and soon found a handgun in the front console between the driver’s and passenger’s seats.
Deputy Jones clarified on cross-examination why he detained appellant. He did so to “either warn him or cite him for the indicated [traffic] violation, coupled with the fact that he was in a rival gang area and he lived at an East Lakewood address which borderlined [sic] Hawaii[a]n Gardens. Both passengers lived in Hawaii[a]n Gardens. [¶]... [¶]... There was intense criminal activity occurring, shootings between Artesia and Hawaii[a]n Gardens, approximately 12 shootings in that prior two weeks. Only two shootings had occurred in Artesia.... [R]etaliation was imminent in the form of a shooting based on what was going on, and also that the tagging that had just occurred, their gang-like clothing, the delayed time it took [appellant] to stop his vehicle. All of these things, coupled with the Supreme Court [ruling permitting detention] at nighttime....” Jones also said he feared for his own safety as he was alone, the hour was late, it was dark, and he thought the car might be involved in a gang shooting.
On redirect examination, Deputy Jones said he definitely waited for backup officers before anyone was removed from appellant’s car, as it would have been unsafe for him to turn his back on an occupied car that had possible gang members inside.
Appellant testified that he stopped his car within five seconds of seeing the patrol car’s emergency lights. Deputy Jones approached, told him the stop was for an illegal turn, and requested his driver’s license and insurance. He gave those items to Jones. Jones went back to his car, returned about a minute later, and told appellant to get out of the car. He patted appellant down, handcuffed him, and told him to get into the patrol car. He asked appellant if he owned the car and if he had been driving it all day. Appellant said yes. The backup deputies had appellant’s friends get out of appellant’s car, about 30 seconds after appellant was inside Jones’s patrol car. Jones searched appellant’s car without asking for consent to the search.
On cross-examination, appellant insisted that Deputy Jones removed him from his car before the backup officers arrived.
B. The Arguments and the Ruling on the Section 1538.5 Motion
Appellant’s written motion argued that the traffic stop was a pretext, his prolonged detention was illegal, and he never consented to the search.
During argument after the testimony, both sides recognized that there was a credibility contest between Deputy Jones and appellant on the issue of consent. The prosecutor argued that appellant’s version did not make sense, as Jones would not have turned his back on a car that contained suspected gang members. Appellant’s counsel maintained that Jones had fabricated consent to justify the search, as it was not reasonable that appellant would consent to the search when he knew there was a gun in his car.
The court denied the suppression motion, based on these rulings: Appellant was properly stopped for an illegal left turn. The detention was not overly prolonged, as appellant provided consent for the search within a minute or two of when he was placed inside the patrol car. The court believed Deputy Jones’s testimony that appellant consented to the search, particularly because it did not believe appellant’s testimony that, before the backup officers arrived, Jones turned his back on the car’s passengers while he placed appellant in the patrol car.
C. Analysis
On appeal, appellant maintains that the initial stop, removal from his car and patdown search were appropriate, but Deputy Jones “impermissibly widened the scope of the initial detention” by detaining him and placing him in the back of the patrol car. The contention lacks merit.
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Events happened quickly after appellant’s car was stopped. Deputy Jones approached appellant’s car, saw how its occupants were dressed, and learned that they came from or near the territory of Hawaiian Gardens, from whom a retaliatory shooting was expected. He immediately radioed for backup officers, who arrived in “[a]pproximately one minute.” Jones made appellant leave the car, patted him down, and had him sit in the patrol car. Within “one to two minutes” of when appellant left his car, Jones obtained appellant’s permission to search it.
In People v. McKay (2002) 27 Cal.4th 601, 607 (McKay) the California Supreme Court upheld an arrest for riding a bicycle in the wrong direction on a street, based on Atwater v. Lago Vista (2001) 532 U.S. 318, which upheld an arrest for violating Texas’s seatbelt law. “Under Atwater, all that is needed to justify a custodial arrest is a showing of probable cause. ‘If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.’ ([Atwater,] at p. 354.) We must therefore conclude that there is nothing inherently unconstitutional about effecting a custodial arrest for a fine-only offense.” (McKay, at p. 607.)
Appellant strenuously contends that McKay is inapplicable because he was not arrested for the traffic violation, and could not be arrested for it, as he showed his driver’s license, which meant Deputy Jones should have followed the cite-and-release procedure of Vehicle Code section 40302. McKay clearly holds, however, that “so long as the officer has probable cause to believe that an individual has committed a criminal offense, a custodial arrest--even one effected in violation of state arrest procedures--does not violate the Fourth Amendment.” (McKay, supra, 27 Cal.4th at p. 618.) If the Fourth Amendment would not have been violated by a custodial arrest of appellant, it certainly would not be violated by the far lesser intrusion of having him sit in the patrol car.
Vehicle Code section 40302 states, in pertinent part: “Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate... in any of the following cases: [¶] (a) When the person arrested fails to present his driver’s license or other satisfactory evidence of his identity for examination.” (See McKay, supra, 27 Cal.4th at p. 620.)
Furthermore, Deputy Jones had the right to temporarily detain appellant while discharging the duties required by the traffic stop. (People v. McGaughran (1979) 25 Cal.3d 577, 584.) “Implicit in the McGaughran analysis is a recognition that the circumstances of each traffic detention are unique and that the reasonableness of each detention period must be judged on its particular circumstances.” (Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358.) The “particular circumstances” here made this much more than a routine traffic stop. Deputy Jones was certainly justified in briefly moving appellant to the patrol car, as he learned when he stopped appellant for the traffic offense that he was faced with three men from Hawaiian Gardens territory who were driving around in Arta territory in the middle of the night.
After appellant was legally inside Deputy Jones’s car, Jones immediately obtained appellant’s consent to search the car. Appellant testified to the contrary, but we defer to the trial court’s factual finding in favor of Jones’s version. (People v. Glaser, supra, 11 Cal.4th at p. 362.) The search that produced the gun was a consensual search. The United States Supreme Court has “long approved consensual searches ‘because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so.’” (Florida v. Jimeno (1991) 500 U.S. 248, 250-251.) Knowles v. Iowa (1998) 525 U.S. 113, upon which appellant relies, is inapplicable, as it did not involve a consensual search.
We therefore conclude that the trial court properly denied appellant’s section 1538.5 motion.
2. Ineffective Assistance of Counsel
Appellant’s claim of ineffective assistance of counsel relies on a difference between Deputy Jones’s testimony at the section 1538.5 hearing and at the trial. He testified identically about most of the details, but added at the trial that his gun was pointed at the occupants of appellant’s car while he waited for the backup officers. Specifically, he said the gun was at his side when he approached appellant’s car, but he pointed it at the heads of appellant and the passengers after he heard where they resided, because at that point he believed, from a combination of factors, that he was “looking at a car full of gang members on a mission to do a drive-by” shooting.
Appellant argues that the failure of his trial counsel to investigate whether Deputy Jones used his gun to obtain appellant’s consent to the search, and/or counsel’s failure to seek to suppress the evidence on the basis of the newly discovered evidence of Jones’s use of his gun, resulted in a denial of the United States Constitution Sixth Amendment right to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 691.)
The problem with appellant’s argument is that there is no evidence that Deputy Jones had his gun pointed at appellant when he asked appellant to consent to the search. When appellant testified at the section 1538.5 hearing, he said he never was asked to give consent and did not say he consented due to Jones’s use of the gun. Jones testified at the trial that he pointed his gun before the backup officers arrived, but he did not say he continued to do so after they arrived. He testified at the trial, as he had at the section 1538.5 hearing, that when the backup officers arrived, he took appellant from the car, patted him down, and placed him in the rear of the patrol car. He asked appellant if he could search the car, and appellant gave permission. There is no evidence that his gun was still pointed at appellant at that time.
Because the evidence does not show the fact upon which appellant’s argument rests, he has failed to show he was denied the effective assistance of counsel.
3. The Pitchess Issue
Under Pitchess, supra, 11 Cal.3d 531, a criminal defendant who makes the appropriate showing can compel discovery of information regarding citizen complaints in a peace officer’s personnel file. On appeal, an abuse of discretion standard is used to review the trial court’s Pitchess determinations. (People v. Mooc (2001) 26 Cal.4th 1216, 1219-1220, 1225-1228.)
A minute order shows that on April 26, 2007, appellant’s Pitchess motion was called for hearing. The court decided to hold an in camera hearing. After that hearing, the court ruled that certain documents were to be disclosed to defense counsel and the People.
Appellant asks this court to review any material that was turned over to the trial court in camera to determine whether there was discoverable information that was improperly withheld from him. We do not conduct that review, for these reasons:
Appellant has not moved to augment the record on appeal with either the written Pitchess motion or a transcript of the in camera hearing that was held pursuant to that motion. We know that documents were disclosed, but we do not know if there were other documents that were not disclosed. Most importantly, it appears that appellant is foreclosed from raising this issue, as after the jury found him guilty on counts 2 and 3, he pleaded guilty to amended count 1, and his combined sentence on all three counts is the result of a negotiated plea agreement. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 13, pp. 249-250 [denial of discovery motion is not reviewable on appeal after a plea of guilty].)
4. The Section 654 Issue
On count 1(conspiracy to commit an assault with a deadly weapon),appellant was sentenced to the midterm of three years in prison, plus five years for the gang enhancement. On count 2 (having a concealed firearm in a vehicle) and count 3 (carrying a loaded, unregistered firearm, he received concurrent sentences of the midterm of two years, plus three years for the gang enhancements. He contends that counts 2 and 3 should have been stayed pursuant to section 654, rather than run concurrent.
The test for application of section 654 is “the intent and objective of the author. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.]” (People v. Latimer (1993) 5 Cal.4th 1203, 1208; see also People v. Garcia (1978) 86 Cal.App.3d 314, 317.) Here, it appears that all of the counts had the same single objective, to drive into the rival gang’s territory and shoot at members of that gang.
Even so, we reject appellant’s contention, because he was sentenced pursuant to a negotiated plea agreement that included a guilty plea to an amended count 1 and concurrent sentences on counts 2 and 3, which had already resulted in guilty verdicts. The amendment of count 1 from conspiracy to violate section 245, subdivision (b) to conspiracy to violate section 245, subdivision (a)(2) reduced the possible penalty on count 1. Pursuant to the agreement, appellant also was promised the midterm and did not risk the upper term. He received the benefit of his bargain and cannot challenge the validity of the negotiated plea, as he pled to a specified term without asserting a section 654 claim (People v. Hester (2000) 22 Cal.4th 290, 294-295; Cal. Rules of Court, rule 4.412(b)), and failed to obtain a certificate of probable cause (People v. Shelton (2006) 37 Cal.4th 759, 771).
Appellant stresses that in imposing sentence, the trial court stated: “The court understands that the Counts II and III [sic] will run concurrent because of the prohibition for multiple punishments for the same act or admission pursuant to the [California] Rules of Court[, rule] 4.424 and Penal Code [s]ection 654[, subdivision] (a).” Appellant argues that those words show that the court and both sides below erroneously believed that making counts 2 and 3 concurrent solved the section 654 problem. We do not further discuss the point because we must follow the previously cited decisions of our Supreme Court that foreclose raising a section 654 issue under the circumstances of this case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
5. Modification to the Correct Offense in Count 1
On count 1, appellant pled guilty to “a violation of Penal Code [s]ection 182[, subdivision] (a), conspiracy to commit a violation of Penal Code [s]ection 245[, subdivision] (a)(2).” Both the abstract of judgment and the minute order for the plea proceedings of October 12, 2007, erroneously indicate that the crime in count 1 is a violation of section 245, subdivision (a)(2), rather than conspiracy to commit that crime. Those documents must be corrected to show the appropriate offense.
Concurrently with his reply brief, appellant filed a request that his second issue, ineffective assistance of counsel, and his fourth issue, section 654 as to counts 2 and 3, be treated as the arguments in a petition for writ of habeas corpus, if those arguments are not cognizable on appeal. We deny the request because (a) appellant has not properly presented his claim for habeas relief by filing a petition for writ of habeas corpus (see Cal. Rules of Court, rule 8.384), (b) appellant has not established ineffective assistance of counsel, and (c) acceptance of a plea bargain to a specified sentence is an implicit waiver of section 654 rights. (People v. Hester, supra, 22 Cal.4th at p. 295.)
DISPOSITION
The abstract of judgment and the minute order of the plea proceedings on October 12, 2007, shall both be corrected to show that the offense in count 1 is a violation of section 182, subdivision (a), conspiracy to commit a violation of section 245, subdivision (a)(2). The corrected documents shall be forwarded to the Department of Corrections and Rehabilitation. In all other aspects, the judgment is affirmed.
We concur RUBIN, ACTING P. J., BIGELOW, J.