Opinion
B229848
09-06-2011
THE PEOPLE, Plaintiff and Respondent, v. ARMON MARTIN RICO, Defendant and Appellant.
ennifer P. Cody, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA068311)
APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed.
Jennifer P. Cody, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Armon Martin Rico appeals from the judgment entered following a jury trial which resulted in his conviction of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and the transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)). The trial court suspended imposition of sentence and placed Rico on three years formal probation on the condition, among others, that he serve 270 days in the Los Angeles County Jail. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The prosecution's case.
Los Angeles Police Detective Jason Wagner has been a police officer for 15 years. He has been assigned to the West Valley Narcotics Division for the past three years and, prior to that, worked with narcotics units in other areas of the City of Los Angeles.
Wagner received his initial narcotics training at the Los Angeles Police Academy in 1996. After graduating from the academy, Wagner had the opportunity to work with more experienced narcotics officers and his first narcotics assignment was in North Hollywood in 1999. There, all of the "investigations were directly related to narcotics; so on a daily basis everything revolved around narcotics." Now, as a narcotics supervisor in the West Valley, Wagner trains younger officers. He shows them how narcotics are packaged, transported and sold. He has testified "hundreds of times [at] both preliminary hearings and trials as [a] narcotics expert and [has] arrested or been involved in the arrest of thousands of individuals for . . . narcotic-related offenses . . . ." Wagner estimated that he had participated in approximately 300 narcotics arrests each year and that approximately 20 percent of those involved rock or crack cocaine.
Wagner indicated that transactions which involve rock cocaine in the San Fernando Valley are different from those which occur in other parts of the city. He referred to them as "call-and-deliver sales" because dealers drive to various locations to meet their buyers rather than the other way around. This is especially true with regard to rock cocaine. A buyer will call a dealer and the two will agree to meet at a particular location. "[T]ypically, the dealer will park his car. The buyer will get out of [his] car [and] get in the dealer's car. They'll . . . drive around the neighborhood . . . , make a transaction in the car while driving, and then the buyer will get dropped off . . . ." Wagner explained: "Doing it in this manner facilitates a couple [of] different things, No. 1, because the valley is so big the dealers are able to go wherever they need to go . . . for the buyers[;] [¶] [a]nd [No. 2,] it keeps them a little bit safer from police contact because they don't have to sit on the doorstep of an apartment complex and be seen by the public and potentially get the police called on them . . . ."
On the evening of August 2, 2010, Wagner was wearing tennis shoes, blue jeans and a T-shirt and was driving a Toyota Camry. He was working with a team of six officers, each of which was similarly dressed and driving a different car. At approximately 8:00 p.m., Wagner was driving through the intersection of Roscoe and Balboa Boulevards in the City and County of Los Angeles. There, he saw Armon Rico walking around the northeast corner, constantly talking on his cell phone. Rico crossed to the west side of the intersection, and was constantly "on and off his cell phone as if he [were] trying to make a call or expecting a call." His behavior was consistent with "narcotic loitering activity." Rico walked approximately one-eighth of a mile up Balboa, across some railroad tracks and into a building of approximately 40 apartments. He entered the building through the front door at 8411 Balboa Boulevard.
Wagner had parked his car north of the intersection, on the west side of the street. He got out of the car and went to one of the outer doors to the complex, intending to enter the apartment building. However, the doors were locked, so Wagner had to wait until someone came out before he could enter the building. One of Wagner's partners, Detective Kim, had already walked inside the complex. After Wagner had been inside the apartment building for approximately three minutes, Kim notified Wagner that Rico had left. Wagner went outside where he saw Rico walking northbound on Balboa, on the west side of the street.
Wagner followed Rico on foot. However, when Rico, who was approximately 100 yards ahead of Wagner, turned around and began to walk southbound, Wagner "secluded" himself in the bushes of another apartment complex. Rico walked past Wagner, then got into the passenger side of a burgundy Mercury Cougar. The vehicle pulled away, driving southbound on Balboa. As the car drove off, Wagner could see Rico, a driver and a passenger sitting in the right rear seat.
Wagner and his partners got back into their cars and followed Rico. After leaving the area surrounding the intersection of Roscoe and Balboa, the car in which Rico was riding made two stops. The first stop was approximately 10 to 15 minutes away at an apartment building located at 14400 Vose Street, just off of Van Nuys Boulevard and Sherman Way. The Cougar parked on the north side of the street, directly across from the center of the complex. Rico got out of the car and, while he was talking on his cell phone, walked across the street to the apartment building. He pushed some numbers on the security key pad, the door opened and he went inside. After two or three minutes, Rico walked back out of the complex and entered the passenger side of the Mercury. The Mercury Cougar then drove off, initially heading westbound on Vose, then turning north onto Van Nuys Boulevard. Once again, Wagner and his partners followed.
The Cougar drove northwest for approximately 15 minutes, then parked behind a Toyota at the intersection of Septo and Densmore in Mission Hills. Wagner informed his partners that, at this point, he wished to stop the Mercury and investigate. Wagner stated: "[B]ased [on] the multiple stops that they had made, [his] original observations of Mr. Rico [and] . . . the way [the] drug transactions occur in the valley, [he] believed at that point in time that Mr. Rico [might] be a call-and-deliver drug dealer and [might] be delivering drugs to individuals. So [he] wanted to stop and investigate to see if, if fact, [his] suspicions were true." Accordingly, Wagner and his partners parked their vehicles around the Toyota and the Cougar.
Rico got out of the Cougar and walked southbound, toward the passenger's side of the Toyota. There was one person in the Toyota, the driver, a woman named Shari Clarke.
Wagner approached Ms. Clarke. Officer Hernandez approached Mr. Rico, Detective Christensen approached the driver of the Cougar, Mr. Burkhiser, and Detective Kim approached the passenger in the Cougar, Mr. Drossin. As Hernandez walked toward Rico, Rico ran southbound, away from the Toyota. Hernandez followed until he caught up with Rico and took him into custody.
When Wagner approached Clarke, he had her get out of the car and turn around. It was then that Wagner noticed the tip of a glass pipe protruding from her rear pants pocket. Inside Clarke's purse were Brillo pads and metal rods. Because all of these items, when used together, could make a cocaine pipe, they were booked into evidence. A subsequent search of Clarke's car revealed no narcotics.
Later, when Wagner went to speak with Officer Hernandez, he learned that Rico had told Hernandez that the house on the corner of Septo and Densmore was Rico's parents' home. Hernandez then handed to Wagner, items he had recovered from Rico: a "cell phone," a "plastic baggie with [a] rocklike substance resembling rock cocaine" inside, $42 in cash, and "some loose pieces of rock cocaine." That same night, Detective Kim showed Wagner a plastic bag which contained an "off-white substance resembling rock cocaine." Wagner indicated that "[b]ased on the hundreds of arrests [he had] made throughout [his] career, [he knew] that rock cocaine [could] come in . . . [a] couple [of] different [forms]." One actually looks like a small little rock. At other times, it can look like a flattened out off-white, almost yellowish tortilla.
Throughout the evening, Wagner answered the cell phone he had recovered from Rico. The first call was from an individual named Terry who wished to purchase $40 of rock cocaine. Wagner told "Terry" that he was busy, but that a man named Mike would meet him at the intersection of Haskell and Sherman Way. However, none of the officers went to that location.
The second call received by Wagner was from a man named Mike. Mike asked Wagner if he could "hook him up." It was agreed that Mike and an undercover officer, also named Mike, would meet at the corner of Woodman and Van Nuys. Wagner, Detective Kim, Officer Hernandez and Officer Stephens all proceeded to the intersection. Wagner acted as though he were the "Mike" who had arranged to meet Mike and he met Mike on the southeast corner of Woodman and Van Nuys. Mike got into the passenger seat of Wagner's car and the two men had a conversation. Mike had apparently told Wagner that he wanted to purchase $40 worth of cocaine. Once he was in the car, however, he told Wagner that he wished to purchase only $10 worth. Mike gave to Wagner $10 and Wagner gave to Mike "[c]hopped up cashews." The nuts, when chopped, look like cocaine.
After the two incidents, the Cougar was searched. Although officers went through the "entire car," no drugs were found.
Donald Christensen is a supervising detective with the Los Angeles Police Department assigned to the West Valley Area Narcotics Division. On August 2, 2010, Christensen was working with Detective Wagner and a group of four or five other officers. He was in plain clothes and driving an unmarked car. After reporting to the intersection of Balboa Boulevard and Roscoe Boulevard, Christensen followed a red Cougar, which ultimately drove to Densmore Street near Septo.
Christensen approached Burkhiser, who was sitting in the driver's seat of the Mercury Cougar. Christensen and another officer had Burkhiser get out of the car, immediately placed him in handcuffs, advised him of his Miranda rights, then interviewed him at the rear of the car.
Burkhiser told Christensen that Rico had "called him and told him to meet him by the railroad tracks on Balboa. He said [that] he ha[d] driven for [Rico] four or five times in the past." Burkhiser "explained that[, when he drove for Rico,] he got a little bit of money and got his tank filled up with gas."
Detective Jong Kwan Kim has been a police officer for a little over 13 years. On August 2, 2010, he was assigned to the West Valley Narcotic Enforcement Detail and, on that evening, had reported to the intersection of Roscoe and Balboa Boulevards. Detective Wagner had requested assistance at that location and Kim, who was dressed in plain clothes and driving an unmarked car, had been only a few minutes away from the street corner. When he arrived, he parked his car on Balboa, got out and followed the suspect, Armon Rico, into an apartment complex. Once inside the complex, Kim lost sight of Rico. He saw him again, approximately five minutes later, as he was leaving the apartment house.
Kim followed Rico outside. Rico, as he was talking on a cell phone, walked north on the sidewalk on Balboa. He then turned around and began to walk south. To avoid contact with Rico, Kim walked across the street and got back into his car. He was then instructed to follow a burgundy colored Mercury Cougar that Rico had been seen getting into.
Kim followed the Cougar to Vose Street, just east of Van Nuys Boulevard. There he saw Rico get out of the car and enter another apartment building. Although Kim attempted to follow Rico, the building was locked and he could not get inside. When Rico came back out approximately two minutes later, Kim watched as he got back into the Mercury Cougar. The car drove away and Kim and his team followed it.
The Mercury pulled up behind a white Toyota parked on Densmore Street, near the corner of Septo. All of the officers, including Kim, Hernandez, Wagner, Christensen and Mejia, parked their cars at various points around the Toyota and the Mercury, then got out of their cars to investigate the situation. Kim, like Wagner, believed the suspects were engaged in narcotics activity and he approached the passenger side of the Mercury. Rico had already gotten out of the car, so Kim addressed the driver, Burkhiser, and the passenger in the back seat of the car, Drossin, and told them to get out of the vehicle.
When he initially approached the car, Kim did not see anything on the ground near the passenger side. However, after Drossin got out, Kim "found a bindle outside the door." "It was approximately two to three feet [away from] the outside of the passenger door towards the gutter area." Kim picked up the bindle and booked it into evidence.
That night, August 2, 2010, Mr. Burkhiser was taken into custody, Mr. Rico was taken into custody, Ms. Clarke was taken into custody and Mr. Mike Vaughn was taken into custody.
Stephanie Thomas works for the Los Angeles Police Department's Scientific Investigation Division. She is assigned to the Narcotics Analysis Section and has tested for cocaine, heroin, methamphetamine, marijuana and other opiates. In her work for the Los Angeles Police Department, she has tested for cocaine "thousands and thousands of times." In the present case, Thomas tested substances contained in three separate zip-lock baggies. One "rock" weighed 1.19 grams, one bag contained pieces weighing .25 grams, and one "rock" weighed 10.49 grams. Thomas first performed a "color screening test," then a "microcrystal test," both of which resulted in positive readings for cocaine base.
b. Defense evidence.
Jerry Burkhiser had known Rico for approximately three months when they were taken into custody on August 2, 2010. A friend of Burkhiser's who was very ill had called him to ask him to give her a ride to the hospital. When Burkhiser arrived at the house, Rico was there. Rico rode in the car with Burkhiser and Burkhiser's friend to the hospital, then Burkhiser gave Rico a ride to his parents' home at the intersection of Densmore and Septo.
At approximately 7:45 p.m. on August 2, 2010, Burkhiser was at the home of a friend, Jack Drossin. He and Drossin were waiting for Drossin's wife to finish preparing dinner when Burkhiser received a telephone call from Rico. Rico asked Burkhiser if Burkhiser could pick him up at "Balboa and the railroad tracks" and take him to his parents' home. Burkhiser told Rico that he would do it because he and Drossin were going out anyway. They had to pick up a few items from the grocery and Balboa and Rico's parents' home were not very far from the store. Burkhiser had been to both places before.
When Burkhiser went to pick up Rico at Balboa and the railroad tracks, he pulled into an open space by a fire hydrant. Rico was not there so Burkhiser called him on his cell phone. Rico said he was a short distance north of where Burkhiser had parked and would be there shortly. In the meantime, Drossin, who had been sitting in the front passenger seat, moved to the back seat.
When Rico got into the car, he asked Burkhiser if he could take him to Vose and Van Nuys Boulevard, an address Burkhiser had taken Rico to on a number of prior occasions. At Vose and Van Nuys, Burkhiser veered into a space near the curb, Rico jumped out of the car, went into an apartment building and, about one and one-half minutes later, returned to the car. Burkhiser then drove Rico the approximately 15 minutes to his parents' home. On the way, Burkhiser and Drossin talked about what they were going to do the following day. Rico talked on his cell phone.
At Rico's parents' home, Burkhiser pulled up behind a white Toyota. Inside the car was a woman named Shari Clarke. Burkhiser, who knew Clarke "[s]lightly," saw that she was sitting sideways in the driver's seat with the door ajar. When he saw Clarke, Burkhiser, who knew that Rico's birthday was the following day, thought that he might have a good one.
Burkhiser then looked into his side mirror and saw four or five unmarked cars "come wheeling around the corner. They looked like they were racing, and they all pulled up beside [him] blocking [him] in." Burkhiser noticed that the man who got out of the car parked just in front of where Burkhiser had parked was wearing a badge on his belt, so Burkhiser assumed the man was a police officer.
When an officer told Burkhiser to turn his car off, Burkhiser complied with the order. When he was asked to get out of the car and stand near the back window, Burkhiser cooperated. After he was patted down and handcuffed, an officer asked Burkhiser what he was doing there. He told the officer that he had been "dropping off [his] friend" who lived there. One of the officers then said to Burkhiser, "You guys are out here selling dope. We have been watching [your friend] for a while."
Detective Christensen asked Burkhiser a number of questions and after a time, transported Burkhiser to the West Valley Police Station. Burkhiser was then taken to the Van Nuys Police Department for booking.
During the two- to three-month period that he had known Rico, Burkhiser had taken Rico's girlfriend to look for a car and had given Rico rides to and from various places. Burkhiser had never, however, seen Rico do anything to make Burkhiser believe that Rico sold drugs.
2. Procedural history.
After a preliminary hearing, on August 26, 2010 Rico was charged by information with one count of possession for sale of cocaine base in violation of Health and Safety Code section 11351.5 (count 1) and one count of the sale or transportation or offer to sell a controlled substance, to wit, cocaine, in violation of Health and Safety Code section 11352, subdivision (a) (count 2).
At proceedings held on November 18, 2010, Rico made a motion to suppress evidence pursuant to Penal Code section 1538.5. It was initially agreed that "there [had been] no warrant of arrest or search in this matter."
At the hearing held on the motion, Detective Wagner testified that, at approximately 8:00 p.m. on August 2, 2010, he was near the intersection of Balboa Boulevard and Roscoe Boulevard. There, the detective observed Rico, who was constantly on his cell phone, walking north on Balboa. Rico entered an apartment building. A few minutes later, when he left the building, Rico got into the passenger side of a burgundy Mercury Cougar and was driven to a second apartment building. This building was located at 14400 Vose Street, just off of Van Nuys Boulevard. Rico got out of the car, dialed some numbers on the phone pad outside the building, then entered.
Up to this point, Wagner's attention had been drawn to Rico because "oftentimes throughout [his] patrols . . . as a narcotics detective, [he] drive[s] around the different areas of the City of the San Fernando Valley, and nine out of 10 times . . . when [he] find[s] narcotic users, they are on a phone, whether it be a pay phone or cell phone, waiting . . . looking around as if they are waiting for a deal. And many times, more times than not, those individuals are waiting for their narcotic dealer." "So the fact that [he] saw Mr. Rico on his phone pacing up and down the street, looking around, [led him to think that] maybe he was potentially a buyer of narcotics waiting for his dealer to show up." Wagner admitted, however, that he saw nothing in Rico's hands other than his cell phone.
In addition to his use of a cell phone, Rico was "in and out [of the apartment buildings] quickly." It had been Wagner's experience that "drug users and drug dealers, when they meet up with one another . . . don't hang out for a long period of time. Typically, transactions are very quick, and if it's in an apartment complex, they are in and out of the complex. If it's in a vehicle, they are in and out of the vehicle very quickly."
After observing Rico at the apartment buildings, Wagner decided that he "wanted to make contact" with him. Wagner and the other officers followed the Mercury Cougar in which Rico was riding and, when they came around the corner, Mr. Rico had already gotten out of the car and was walking up to the passenger side of the Toyota parked there. When he then saw the officers get out of their cars, Rico turned and ran. However, he had only gone a short distance when Officer Hernandez caught up with him and detained him. At the same time, Wagner detained the driver of the white Toyota and Officer Mejia detained Burkhiser, the driver of the Cougar. Wagner noted that "[i]f it's a planned detention, where one of [the officers] believe[] we have enough probable cause to stop and detain somebody, we will [box them in with our cars and bodies] in order" to prevent them from fleeing. In addition, if a suspect sees that an individual is a police officer and starts to run, that usually says something about their guilt. Wagner testified, "I was identified as a police officer. I identified myself as a police officer, had my gun and badge showing. People that are, say, innocent typically don't run from the police. People that have something to hide or something to be guilty of, run from the police. . . ."
Rico testified that in 1981, he had been convicted of the sale of marijuana in violation of Health and Safety Code section 11360. He now lives at 15903 Septo in North Hills. The house, a single family dwelling, sits on the corner of Septo and Densmore.
On August 2, 2010, Rico arrived home at approximately 9:00 p.m. He had been given a ride home in a vehicle that night and, after getting out of the car, had walked to his front yard. As he entered the yard, Rico saw four or five other cars with their lights on "arriving at [the] location." The occupants got out of the cars and said, " 'Freeze. Don't move. Police officers.' " The first officer to identify himself was a young "Hispanic man." Although he was in plain clothes, he was displaying a badge on his chest and "he had his gun drawn and pointed at [Rico]." Rico froze. Five seconds later, while he was behind a pillar in his front yard, Rico was thrown onto the ground.
After all of the evidence was presented and the parties made their arguments, the trial court indicated that, "[p]reliminarily," it had found Detective Wagner more credible than defendant Rico. The trial court continued: A recent case in this area held that "the reasonable suspicion of the detention is not a demanding one, but . . . instead [requires] considerably less than proof by a preponderance of the evidence. [¶] The possibility of an innocent explanation for factors relied on by an officer does not necessarily preclude the possibility of a reasonable suspicion of criminal behavior. [¶] I find that this is also not a detention when the vehicles drove up, but a threatened detention, at which time defendant Rico took flight. [¶] [It has been noted that] headlong flight, which is the consummate act of evasion may suggest a wrong-doing and thus an officer may detain a defendant who observing police officers flees. The reasonable suspicion determination must be based on common sense judgment and inferences about human behavior. [¶] The detective did testify as to . . . significant experience[] and to his feeling and he was forthright in that view. [¶] Based upon the totality of the circumstances I have before me, . . . I do find that the" evidence is sufficient. "[T]he 1538.5 motion is denied."
After a jury was selected, but before the witnesses began to testify, the People brought an Evidence Code section 402 motion. The prosecutor indicated that he anticipated that there would be testimony that, "after Mr. Rico was detained and a phone was recovered from him, that phone then rang multiple times and that Detective Wagner answered [it] . . . in an undercover capacity" and spoke to at least two people about setting up the purchases of narcotics. The "detective . . . did, in fact, set up a purchase at [one] location[.]" The prosecutor wanted "to bring before the court . . . the content of the phone calls, what the people on the phone were saying when they called [and] . . . Detective Wagner answered the phone, and [that] the people were calling saying I want to buy some drugs . . . ."
The trial court determined that the statements made by callers on the cell phone would be allowed and that "the detective [would] be able to testify to the content of the phone conversations, as well as the subsequent meeting and sale of the facsimile narcotics." The court continued: "The court finds it is more probative than prejudicial in this case and, indeed, goes directly to the charges alleged to have been filed . . . ."
The day after counsel delivered their arguments and the trial court instructed the jury, the jury indicated that it had reached verdicts on the alleged charges. The clerk read the first verdict, which stated: "In the Superior Court of the State of California, County of Los Angeles, Department North Valley G. People of the State of California [v.] Armon Martin Rico, Case PA068311, verdict: [¶] We, the jury in the above-entitled action, find the defendant Armon Martin Rico guilty of the crime of possession for sale of cocaine base, in violation of Health and Safety Code section 11351.5, a felony, as charged in count 1 of the information." The clerk continued: "In the same case, title, and cause, we the jury in the above-entitled action find the defendant Armon Martin Rico guilty of the crime of transportation of a controlled substance, to wit, cocaine, in violation of Health and Safety Code section 11352[, subdivision] (a), a felony, as charged in count 2 of the information." The verdicts were dated December 1, 2010.
Probation and sentencing proceedings were set for December 8, 2010 and, in the meantime, Rico was remanded. On December 9, 2010, the trial court placed Rico on three years of formal probation on the condition, among others, that he serve 270 days in county jail. The trial court noted that Rico was to be credited with 140 days of pre-sentence custody.
Rico was ordered to pay a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $200 stayed probation revocation restitution fine (Pen. Code, § 1202.45), a $50 penalty assessment (Pen. Code, § 1464), a $30 criminal conviction assessment (Gov. Code, § 70373) and an $80 court security fee (Pen. Code, § 1465.8, subd. (a)(1)). In addition, he was to pay a $50 crime laboratory fee and a $150 drug-program fee.
Rico filed a timely notice of appeal on December 23, 2010.
This court appointed counsel to represent Rico on appeal on April 5, 2011.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed June 21, 2011, the clerk of this court advised Rico to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
KITCHING, J.
ALDRICH, J.
Miranda v. Arizona (1966) 384 U.S. 436.