Opinion
F075825
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. RAELENE ROY, Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris A. Calandra, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF163756B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush and Craig Phillips, Judges. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Raelene Roy (defendant) of receiving a stolen vehicle in violation of Penal Code section 496d. Defendant's appeal challenges the legality of a traffic stop that resulted in her arrest and prosecution. Alternatively, she claims to have been prejudiced by a misstatement of law made during the People's rebuttal argument at trial.
Except as otherwise specified, all further statutory references are to the Penal Code.
In supplemental briefing, defendant argues her conviction must at least be reduced from a felony to a misdemeanor because of changes in the law effectuated by the Safe Neighborhoods and Schools Act of 2014 (Proposition 47). Lastly, in light of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), defendant challenges sentencing enhancements imposed pursuant to former subdivision (b) of section 667.5. We will instruct the trial court to strike those enhancements, but we affirm the remainder of the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2015, Leeroy S. and his fiancée (the couple) began renting a three-bedroom house in the town of Oildale. A few weeks later, the couple agreed to sublet a room to defendant for $300 per month. Defendant and the fiancée were coworkers.
During the relevant time period, Leeroy possessed and drove a 2005 Nissan Altima sedan. The car was registered to his parents. Defendant had her own car, but Leeroy occasionally gave her rides in the Altima and she would have regularly seen the Altima parked in the driveway of the home.
In late 2015, the couple informed defendant she would need to move out. Although defendant had been paying her rent, the fiancée was pregnant and the couple expressed a desire to have more space for their family. However, by December they had allowed two more people to move into the house: the fiancée's best friend and the fiancée's adult daughter. Shortly thereafter, the couple asked defendant to vacate the premises within 30 days. Defendant replied, "'Serve me. I know my rights.'"
On or about January 9, 2016, the fiancée's purse disappeared from inside the home. She had left it on the kitchen counter before going to bed, but the next morning it was nowhere to be found. Whoever took the purse also acquired a spare key to the Nissan Altima, which had been attached to the exterior of the purse. The fiancée reported the incident to police but did not expressly accuse defendant of stealing the purse.
On or about January 24, 2016, the Altima was stolen from outside of the residence. Leeroy had seen the vehicle parked in his driveway at approximately 10:30 p.m. and by 5:30 a.m. it was gone. There were no signs of forced entry (no broken glass) nor any indication the car's antitheft alarm had gone off. Leeroy filed a police report and a claim with his insurance carrier. Defendant ostensibly took it upon herself to investigate the matter and informed the couple of leads she was pursuing, but those efforts appeared fruitless. The couple finally parted ways with defendant at the end of February, when everyone moved out of the house.
On March 23, 2016, Kern County Sheriff's deputies located the Altima during a traffic stop. The original paint had been covered over with a black primer, the upgraded rims Leeroy had put on the car were missing, and the interior was cluttered with toiletries, cosmetics, clothing, and documents bearing defendant's name. Defendant had been driving the vehicle and made incriminating statements when questioned during the stop. She and her passenger, A.G., were arrested and transported to the county jail.
Searches conducted incident to the arrests yielded no contraband. The deputies found a lug nut in A.G.'s pocket and seized a handwritten bill of sale from inside the car. The bill of sale purported to memorialize defendant's purchase of the vehicle on March 16, 2016, from third party owners for the price of $2,500. However, defendant allegedly admitted the document was fraudulent.
The arresting deputies later claimed to have found 18 grams of packaged methamphetamine and three grams of packaged heroin in the back of their patrol car. These items were discovered several hours after the suspects had been booked into jail, but the deputies maintained nobody else had entered the vehicle during their shift. The drugs were allegedly found on the "rear driver's side floorboard where [defendant] had been seated."
Defendant and A.G. were jointly tried on felony counts of receiving a stolen vehicle (§ 496d, subd. (a)). Defendant faced additional drug charges. For sentencing purposes, defendant was alleged to have suffered a prior vehicle-taking conviction (§ 666.5, subd. (a)) and to have served three prior prison terms within the meaning of former subdivision (b) of section 667.5.
The jury acquitted A.G. Defendant was found guilty of receiving a stolen vehicle but not guilty of the drug charges. In a bifurcated proceeding, the trial court made true findings on the section 666.5 allegation and two of the section 667.5 allegations. The third prior prison term allegation was rejected. Defendant received a six-year jail sentence calculated by the upper term of four years and two consecutive one-year enhancements. (See § 1170, subd. (h) [felony jail sentencing].)
DISCUSSION
I. Denial of Motion to Suppress Evidence
A. Background
Pursuant to section 1538.5, defendant moved to suppress all evidence against her as the product of an unlawful detention. The motion was heard over the course of two days. The first day of testimony consisted of the following account by Deputy Daniel Garcia.
On the afternoon in question, Deputy Garcia rode in the passenger seat of a marked patrol car driven by Deputy Chris Cooper. While in Oildale, Deputy Garcia observed a Nissan Altima "exit an alley travelling north on a side street and then make an abrupt turn traveling west on Decatur Street." He noted the Altima was "driving at a speed faster than what would be normal for travelling out of an alley and it also did not brake when it made the west turn onto Decatur."
The patrol car followed the Altima as it continued westbound, stopped at an intersection, turned and went south on Oildale Drive, then made another "abrupt turn" onto Belle Avenue. The Altima "was travelling faster than the flow of traffic," and, from Deputy Garcia's perspective, "it seemed as if the vehicle was speeding." When further examined on the issue of speed, he explained: "When it was travelling westbound on Decatur Street, it's a residential neighborhood and the vehicle appeared to be moving faster than 25 miles an hour based on the visual of the actual movement of the vehicle versus the other vehicles in the same street."
After turning onto Belle Avenue, the Altima pulled over without any prompting from the deputies. In other words, the driver made a spontaneous decision to stop the car. The deputies parked behind the vehicle before activating their rooftop light bar. Next, Deputy Garcia "got on the radio and told dispatch [they] were stopping a Nissan Altima and gave them [their] location and the plate of the vehicle."
Deputy Garcia testified to hearing the dispatcher indicate "the registration was returning expired on a 1997 Ford." At that point, defense counsel made a Harvey/Madden objection. The trial court sustained the objection but later questioned its purpose since defendant's motion expressly concerned "the initial traffic stop." Defense counsel argued the evidence had revealed a lack of justification for any "further detention." The hearing was continued pending testimony by additional witnesses.
People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey); People v. Madden (1970) 2 Cal.3d 1017 (Madden).
When the proceedings resumed, a clerical employee of the Kern County Sheriff's Office testified to having previously obtained information from Leeroy regarding his missing sedan, including the plate characters and vehicle identification number (VIN), and entering the data into a "stolen vehicle system" that is available to "[a]ll law enforcement." The next witness was Deputy Cooper, who briefly testified to hearing defendant admit she knew the Altima was a stolen vehicle. The trial court asked about the relevance of this testimony, and the prosecutor answered, "[I]t provides corroboration to the records check done by [Kern County Sheriff's Office], essentially to show that law enforcement did not make up or imagine the information that they received from the records check."
Deputy Garcia was recalled by the People to further explain his actions before and during the traffic stop. This testimony revealed he and Deputy Cooper had been asked to "try and stop" a certain black Nissan Altima with an expired license plate. The request was made by a probation officer and a narcotics investigator who had been surveilling defendant, knew she was driving the car, and wished to obtain her current address in order to execute a search warrant. The deputies were told when and where the stop could be made, and they had been waiting for the vehicle to emerge from the alley next to Decatur Street.
After initiating the stop on Belle Avenue and running the license plate, Deputy Garcia exited the patrol car and made contact with the Altima's driver, i.e., defendant. While standing at the driver's side door, Deputy Garcia looked at the VIN and radioed it in for another records check. The dispatcher said the vehicle had been reported stolen. Based on this information, Deputy Garcia instructed defendant to exit the vehicle and placed her under arrest.
Defense counsel objected to the VIN check evidence on Harvey/Madden grounds. The objection was overruled in light of the clerical employee's testimony. The trial court went on to say it had "made a mistake" with regard to the earlier Harvey/Madden objection because, to the court's understanding, the People were not relying on the license plate check "to justify the stop."
In his concluding arguments, defense counsel challenged both the initial stop and the arrest. Revisiting the Harvey/Madden objection, counsel said, "I don't think legally there was enough to go make an arrest at that point because once the information about [the expired plate] was received, that's when the officer went ahead and made the arrest." The trial court replied, "[Counsel], that's not the way I understand the evidence. I understand the evidence is that he then went and called in the VIN number. [He arrested her] [w]hen it came back stolen. I don't recall the evidence said it was after the dispatch [regarding the license plate] that he arrested your client."
Acknowledging the traffic stop was pretextual, the trial court said, "[T]he fact [Deputy Garcia] wanted to stop the vehicle certainly goes to credibility issues but I think his credibility was satisfied by the traffic pattern exhibited by the vehicle." The initial detention was found lawful "based on the vehicle's traffic pattern being faster than the flow of traffic and the other maneuvers that the vehicle took."
B. Legality of the Traffic Stop
Citizens have the right to be free from unreasonable searches and seizures. (U.S. Const., 4th & 14th Amends.; Cal. Const., art. I, § 13.) An investigatory detention by police is reasonable under the Fourth Amendment, and therefore legal, "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.) "That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence." (United States v. Sokolow (1989) 490 U.S. 1, 7.)
"[A] lawful traffic stop occurs when the facts and circumstances known to the police officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or another law." (People v. Nice (2016) 247 Cal.App.4th 928, 937-938; accord, People v. Wells (2006) 38 Cal.4th 1078, 1082 ["an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law"].) At the trial court level, it is the People's burden to demonstrate the legality of the stop. (See People v. Williams (1999) 20 Cal.4th 119, 127-128, 130.) On appeal, in reviewing the denial of a section 1538.5 motion to suppress, we "defer to the trial court's factual findings, express or implied, where supported by substantial evidence." (People v. Glaser (1995) 11 Cal.4th 354, 362.) The legal question of whether, "on the facts so found, the search or seizure was reasonable under the Fourth Amendment" is reviewed de novo. (Ibid.)
The pretextual nature of a traffic stop does not establish an unlawful detention. (Whren v. United States (1996) 517 U.S. 806, 812-813.) "We consider whether a search or seizure was reasonable under an objective standard, based on the facts and circumstances known to the officer but without regard to the officer's subjective state of mind." (People v. Flores (2019) 38 Cal.App.5th 617, 626.) "If there is a legitimate reason for the stop, the subjective motivation of the officers is irrelevant." (People v. Lomax (2010) 49 Cal.4th 530, 564.) We defer to the trial court's "power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable." (People v. Woods (1999) 21 Cal.4th 668, 673.)
The parties agree a detention commenced when the deputies activated the lights of their patrol car. (See People v. Brown (2015) 61 Cal.4th 968, 978-980.) The question is whether Deputy Garcia's observations up to that point, i.e., those accepted as true by the trial court, allowed for reasonable suspicion of a Vehicle Code violation. "A traffic stop is lawful at its inception if it is based on a reasonable suspicion that any traffic violation has occurred, even if it is ultimately determined that no violation did occur." (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 510.) Thus, any failure to cite the driver for a Vehicle Code violation "is irrelevant" for purposes of determining whether the detaining officer had an adequate basis for making the stop. (Ibid.)
Defendant focuses on the evidence of a possible speeding violation. California's basic speed law prohibits driving "at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, [or] at a speed which endangers the safety of persons or property." (Veh. Code, § 22350.) A different statute, Vehicle Code section 22352, prohibits exceeding posted speed limits or "prima facie limits," e.g., 25 miles per hour in a residential area. (Id., subd. (b).)
Defendant relies on Nice, wherein a police officer testified to visually estimating the speed of a car to be "35 to 40 miles per hour in a 25-mile-per-hour zone." (People v. Nice, supra, 247 Cal.App.4th at p. 936.) On appeal, the Sixth Appellate District Court of Appeal noted "the paucity of California decisions that address reasonable suspicion in the context of a visual speed estimate." (Id. at p. 940.) In upholding the denial of a suppression motion, the appellate court considered the case of U.S. v. Sowards (4th Cir. 2012) 690 F.3d 583 (Sowards). The Sowards opinion states, in relevant part, "[T]he reasonableness of an officer's visual speed estimate depends, in the first instance, on whether a vehicle's speed is estimated to be in significant excess or slight excess of the legal speed limit. If slight, then additional indicia of reliability are necessary to support the reasonableness of the officer's visual estimate." (Id. at p. 591.)
Defendant alleges the Sixth Appellate District adopted the Sowards holding, which is not entirely accurate. The Sowards framework was described as "persuasive but not controlling." (People v. Nice, supra, 247 Cal.App.4th at p. 940.) "Whether the estimated speed is in slight or significant excess of the speed limit may set a baseline; it does not define the scope of the court's inquiry." (Id. at p. 943.) We need not dwell on this issue because here, defendant's speed was not the only factor relied upon by the trial court. The motion to suppress was denied "based on the vehicle's traffic pattern being faster than the flow of traffic and the other maneuvers that the vehicle took." (Italics added.)
In a written opposition, the People argued the stop was justified based on evidence defendant had violated Vehicle Code section 22107. In a separate argument, the People claimed "the totality of the circumstances" indicated "erratic and suspicious driving." At the motion hearing, the prosecutor noted Deputy Garcia had testified to seeing the Altima turn onto a "busy street ... at a high rate of speed without braking." The prosecutor further argued defendant had driven in an "erratic and suspicious fashion."
Vehicle Code section 22107 states: "No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement." Despite evidence of defendant's failure to signal before making her turns, the trial court concluded Deputy Garcia's testimony on that point was unreliable. However, a driver can violate Vehicle Code section 22107 by making an unsafe turn even if a turn signal is used. (People v. Smylie (1963) 217 Cal.App.2d 118, 121; see Bauer v. Davis (1941) 43 Cal.App.2d 764, 770 [signaling a turn "does not necessarily relieve a driver of the duty to also make proper observations. As is often the case, the driver of a car preceding another may suddenly give a hand signal and turn his car quickly to the right or left without observing traffic to the rear"].)
In a colloquy with defense counsel, the trial court said, "I'm not going to find the stop was legally permissible because of failure to use a signal light because [Deputy Garcia testified] that he doesn't really remember if [s]he used them or not. So you win that argument." It appears the trial court was referring to testimony pertaining to defendant's turns onto Oildale Drive and Belle Avenue. Deputy Garcia admitted not remembering if the driver had signaled before turning onto Oildale and hedged on whether a signal was used before Belle ("I don't believe so"). However, he unequivocally testified the driver did not activate a turn signal before turning onto Decatur Street. For purposes of our analysis, we will assume the trial court found the latter testimony to be unreliable.
Given the implied findings associated with the trial court's reference to "other maneuvers," our independent legal analysis considers the evidence of defendant's sharp or "abrupt" turns. When asked if he had viewed defendant's driving as "suspicious," Deputy Garcia responded affirmatively and explained why: "From my first observations of the vehicle seeing it drive at a faster rate than normal for exiting an alley and making a turn onto a busy street without braking and then following the vehicle ... [and seeing it] immediately pulling over once a police vehicle was behind [it] with no lights or sirens activated to me would seem abnormal." (Italics added.)
The evidence of the Altima turning onto a "busy street" without applying its brakes to stop or slow down was alone sufficient to create reasonable suspicion of an unsafe turn in violation of Vehicle Code section 22107—regardless of whether a turn signal was used. Furthermore, as the People argued, erratic driving can also justify a traffic stop. (People v. Russell (2000) 81 Cal.App.4th 96, 102.) In this context, "erratic" typically refers to weaving. (See People v. Carter (2005) 36 Cal.4th 1114, 1133 [vehicle observed "'swerving across the center line of the highway'"]; People v. Russell, supra, at p. 99 [vehicle "repeatedly drifted around within its lane and sometimes out of its lane"].) In Marvin v. Department of Motor Vehicles (1984) 161 Cal.App.3d 717, the term was used to describe a car circling around a shopping area in the middle of the night, then "through some gas pump lanes, out onto the public street, and then back into the parking lot" before coming to a stop "in the exit driveway." (Id. at p. 719.) The facts of this case are not as extreme, but defendant's driving could reasonably be characterized as erratic based on (1) making a sharp turn onto a busy street without stopping or slowing down, (2) driving faster than the flow of traffic despite the presence of a law enforcement vehicle, (3) making another "abrupt turn" as the police were getting closer, and (4) "immediately pulling over once a police vehicle was behind [her]" without having been directed to do so. We thus conclude Deputy Garcia's testimony supplied the "'minimal level of objective justification' for making the stop." (United States v. Sokolow, supra, 490 U.S. at p. 7.)
C. Harvey/Madden Objection
"In a series of cases dating from the 1950s the California courts developed what came to be known as the Harvey-Madden rule." (People v. Romeo (2015) 240 Cal.App.4th 931, 942.) The rule applies whenever police make an arrest based on information received through "official channels." (Madden, supra, 2 Cal.3d at p. 1021.) Upon the defendant's request, the government must show the person who furnished the information had probable cause to believe the defendant had committed a felony. (Ibid.) The same underlying principle applies to detentions, meaning the People must show the detaining officer did not make up the existence of an anonymous informant or rely on the "imagination" of a colleague. (See People v. Brown (2015) 61 Cal.4th 968, 983; People v. Orozco (1981) 114 Cal.App.3d 435, 444 ["The whole point of the ... rule is to negate the possibility that the facts which validate the conduct of the officers in the field are made up inside of the police department by somebody who is trying to frame a person whom he wants investigated"].)
The Harvey/Madden rule is implicated when a detention is based solely upon information received from a police dispatcher. (See People v. Johnson (1987) 189 Cal.App.3d 1315, 1319.) The prosecution can satisfy its burden with direct evidence in the form of testimony from the dispatcher or the person who supplied the information upon which the dispatch was based. (People v. Brown, supra, 61 Cal.4th at p. 983.) In the alternative, the prosecution may rely on circumstantial evidence demonstrating the police did not fabricate the information contained in the dispatch or the occurrence of the dispatch itself. (See In re Richard G. (2009) 173 Cal.App.4th 1252, 1258-1260; People v. Johnson, supra, at p. 1320 ["the information transmitted by the police dispatcher was corroborated by what the officers observed at the scene, making it virtually impossible for the information to have been made up in the police department"]; People v. Orozco, supra, 114 Cal.App.3d at pp. 444-445 [presence of expended cartridges near vehicle supported "a very strong inference that the police did not make up" a dispatcher's report of shots fired from a car].)
Defendant continues to argue a Harvey/Madden error occurred with regard to the evidence of the license plate check. She also raises the issue of ineffective assistance of counsel. Both claims are misguided.
Deputy Garcia testified to calling in a records check on a license plate ending in "238." His initial testimony about the dispatcher's response—that the plate matched a 1997 Ford with expired registration—was stricken after a Harvey/Madden objection was sustained. A government employee later testified to obtaining information from Leeroy regarding his stolen Nissan Altima and entering it into a "stolen vehicle system" used by police. According to her testimony, Leeroy's license plate ended in "048." The purpose of the testimony was to eliminate any Harvey/Madden issues concerning the VIN check, but the evidence also indicated someone had switched the plates after the vehicle was stolen.
In subsequent testimony, Deputy Garcia again related the dispatcher's response to his request for a license plate check. Defense counsel made another Harvey/Madden objection, but this time it was overruled. The previous witness had not verified any information about the license plate on the Altima at the time of the stop, since that plate "belonged to a different car," but the trial court concluded "it really wasn't a Harvey-Madden situation" since the People were not relying on the plate check as the basis for the detention. The judge further noted any third party statements regarding the plate check were not being admitted for their truth.
Defendant argues the trial court "erred by relying upon the evidence" of what the dispatcher allegedly said about the license plate. However, the Harvey/Madden rule merely requires the People to demonstrate "'that the source of the information is something other than the imagination of [a third party] who does not become a witness.'" (Remers v. Superior Court (1970) 2 Cal.3d 659, 666.) Therefore, the evidence of the Altima having different license plates from those issued to its registered owner was likely sufficient to cure any Harvey/Madden problem. (See In re Richard G., supra, 173 Cal.App.4th at p. 1260 ["When the judiciary can reasonably determine that no evidence has been manufactured, there is no reason for strict compliance with the letter of the 'Harvey-Madden' rule"].) More importantly, the legality of the detention did not hinge on the plate check evidence. (See further discussion, post.)
After the trial court had overruled the second objection to the plate check testimony, defense counsel tried to attack Deputy Garcia's credibility by having him listen to a recording of his conversation with the dispatcher. Defense counsel also claimed to possess a transcript of the recording. After listening to the recording, Deputy Garcia conceded he had misheard the words "four-door" as "Ford." The dispatcher matched the plate to a "Nissan four-door," but the deputy's written report and prior testimony incorrectly referenced a "1997 Ford."
To be clear, the license plate on the car defendant was driving had been issued for a 1997 Nissan Altima. As confirmed by the VIN check, defendant was driving Leeroy's 2005 Nissan Altima. At trial, Deputy Garcia explained the vehicle had been "cold plated," which is a tactic used by car thieves. The chances of getting arrested for driving or possessing a "hot" (stolen) car may be reduced by using a "cold" license plate, especially if it matches the make and model of the vehicle. A police officer would need to check the VIN or review the registration card in order to find the discrepancy.
In an ironic turn of events, defense counsel sought to have the recording and transcript admitted into evidence but the prosecutor objected on grounds of "foundation and hearsay." Although the judge declined to admit the evidence, defendant realizes there is a problem with arguing Harvey/Madden error on appeal after her trial attorney acknowledged the occurrence of the plate check and the substance of the dispatcher's report. She thus alleges ineffective assistance of counsel.
Defendant's claims rest on the false premise that a "further detention" occurred between the time Deputy Garcia initiated the stop and the point when he arrested defendant based on the results of the VIN check. Stated another way, defendant implies the legality of Deputy Garcia's VIN check is somehow tied to the admissibility of evidence regarding the license plate check. We are not persuaded.
"The law contemplates that an officer may temporarily detain [a driver] at the scene for the period of time necessary to discharge the duties related to the traffic stop." (People v. Grant (1990) 217 Cal.App.3d 1451, 1458.) "Beyond determining whether to issue a traffic ticket, an officer's mission includes 'ordinary inquiries incident to [the traffic] stop.' [Citation.] Typically such inquiries involve checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." (Rodriguez v. United States (2015) 575 U.S. 348, 354.) Therefore, "investigative activities beyond the original purpose of a traffic stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take." (People v. Brown (1998) 62 Cal.App.4th 493, 498; accord, People v. Tully (2012) 54 Cal.4th 952, 981-982.)
"There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly." (People v. Russell, supra, 81 Cal.App.4th at p. 102.) The evidence adduced at the motion hearing established this sequence of events: After initiating the detention, Deputy Garcia performed a records check on the license plate (the results of which are inconsequential to our analysis). Next, he exited the patrol car, approached the passenger side of the Nissan Altima, and, "[a]fter some moments," "made [his] way to the driver's side door." While standing next to the driver's side door and amid conversation with defendant, Deputy Garcia looked at the VIN and "conduct[ed] a records check." Upon learning the car had been reported stolen, he instructed defendant to exit the vehicle, "conducted a simple pat-down," and placed her in handcuffs.
"The VIN consists of more than a dozen digits, unique to each vehicle and required on all cars and trucks." (New York v. Class (1986) 475 U.S. 106, 111.) "In conjunction with the State's registration requirements and safety inspections, the VIN helps to ensure that automobile operators are driving safe vehicles. By making automobile theft more difficult, the VIN safeguards not only property but also life and limb.... [¶] To facilitate the VIN's usefulness for these laudable governmental purposes, federal law requires that the VIN be placed in the plain view of someone outside the automobile." (Ibid.)
Because "the VIN plays an important part in the pervasive regulation by the government of the automobile[,] [a] motorist must surely expect that such regulation will on occasion require the State to determine the VIN of his or her vehicle .... This is especially true in the case of a driver who has committed a traffic violation." (New York v. Class, supra, 475 U.S. at p. 113.) A police officer's mere viewing of the VIN during a traffic stop, if done while standing outside of the vehicle, does not violate the Fourth Amendment. (See Class, at pp. 114-115; People v. Lomax, supra, 49 Cal.4th at p. 564 [police officer's "look inside the rear passenger window" allowed him to observe "an item in plain view from a position where he had the right to be. Such conduct does not constitute a search"].) Moreover, "a demand to inspect the VIN, like a demand to see license and registration papers, is within the scope of police authority pursuant to a traffic violation stop." (Class, supra, at p. 115.)
Under the circumstances reflected in the record, Deputy Garcia's VIN check was analogous to a warrant check and thus within the permissible scope of activities related to the initial detention. There is no evidence of a "further detention" apart from the defendant's arrest. Defendant does not allege Harvey/Madden error with regard to the VIN check, and the record would not support such a claim. For these reasons, there are no grounds for reversal.
D. Calling the Prosecutor to Testify
On cross-examination, defense counsel asked Deputy Garcia when he first informed the prosecutor of certain details not contained in his written report of the traffic stop. The questioning focused on the tip received from the probation officer and narcotics investigator about the expired tags on the car defendant was driving. Deputy Garcia testified to having disclosed the information at least several weeks prior to the initial motion hearing.
When Deputy Garcia finished testifying, defense counsel attempted to call the prosecutor as a witness. The trial court asked, "On what grounds?" Defense counsel said the anticipated testimony would have impeachment value. As an offer of proof, counsel stated his recollection of an off-the-record conversation between himself, Deputy Garcia, and the prosecutor. The conversation had left him with the impression the prosecutor had only learned of the "pretextual" nature of the stop within the past 48 hours. Counsel further insinuated Deputy Garcia had made up the part about his colleagues' preexisting knowledge of the expired tags while on the witness stand.
When asked to weigh in on the matter, the prosecutor's response was somewhat ambiguous:
"[Deputy Garcia's testimony] explained what was told to him and that was consistent with what Deputy Garcia explained to [defense counsel] and myself out in the hall. [¶] When we went out into the hall[,] Deputy Garcia covered everything that was contained in that conversation between myself, [defense counsel], and Deputy Garcia. There's nothing new and to be discussed—to be discussed. And I—my—me testifying is not relevant to this as it's already been covered by Deputy Garcia. And if absolutely necessary I can write a sworn statement but me testifying [is] not relevant to this hearing. It's already been covered and I would object to that."
Defense counsel said, "I remember it a little differently," to which the court replied, "Well, then we end up calling you [as] a witness and [the prosecutor] a witness. We're really getting far afield. I'm not going to let you call [the prosecutor]."
Defendant now argues the trial court violated her federal constitutional rights, which is clearly not the case. "Our Supreme Court has rejected the attempt to transform evidentiary claims into errors of constitutional proportion." (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 751.) "Where a trial court's erroneous ruling is not a refusal to allow a defendant to present a defense, but only rejects certain evidence concerning the defense, the error is nonconstitutional ...." (People v. Garcia (2008) 160 Cal.App.4th 124, 133, citing People v. Bradford (1997) 15 Cal.4th 1229, 1325.) "Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Delaware v. Fensterer (1985) 474 U.S. 15, 20 (per curiam).)
Evidence probative of a witness's credibility is relevant for impeachment purposes. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) "As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. [Citations.] A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (Id. at pp. 9-10.)
"It is generally prohibited for a prosecutor to act as both an advocate and a witness." (People v. Linton (2013) 56 Cal.4th 1146, 1185, citing Cal. Rules Prof. Conduct, former rule 5-210.) The same is true for all lawyers, including criminal defense attorneys. (See Rules Prof. Conduct, rule 3.7(a).) "'Only in extraordinary circumstances should an attorney in an action be called as a witness, and before the attorney is called, defendant has an obligation to demonstrate that there is no other source for the evidence he seeks.'" (Linton, supra, at p. 1186, quoting People v. Garcia (2000) 84 Cal.App.4th 316, 332.)
Quoting from this district's opinion in People v. Donaldson (2001) 93 Cal.App.4th 916, 928-929, defendant argues the "main reason" (her words) for the restriction against prosecutorial testimony is "'the concern that jurors will be unduly influenced by the prestige and prominence of the prosecutor's office and will base their credibility determinations on improper factors.'" Since no jurors were involved in the motion to suppress, defendant argues a showing of extraordinary circumstances was not required. That is not the holding of Donaldson, and "'an opinion is not authority for a proposition not therein considered.'" (People v. Castellanos (1999) 21 Cal.4th 785, 799, fn. 9.)
A trial judge sitting as the trier of fact is uniquely qualified to assess the probative value of any potential impeachment evidence. (Cf. Benson v. Honda Motor Co. (1994) 26 Cal.App.4th 1337, 1348 [in a jury trial, the judge "is in the best position to decide whether the probative value of such evidence is outweighed by confusion, undue delay, time consumption, its misleading nature or prejudice"].) The judge below understood what defense counsel hoped he might be able to show by questioning the prosecutor, and the potential impeachment value was deemed insufficient to outweigh the general rule prohibiting such testimony and/or the factors listed in Evidence Code section 352. Such assessments are rarely open to second-guessing by an appellate court.
Defendant also ignores the trial court's observation that allowing the prosecutor to testify was likely to necessitate testimony by defense counsel. The propriety of such testimony depends on multiple factors, "including the significance of the matters to which the attorney might testify, the weight the testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence by which these matters may be independently established." (People v. Dunkle (2005) 36 Cal.4th 861, 915; but see People v. Marquez (1992) 1 Cal.4th 553, 574 ["a trial court may not deny the defendant the right to present impeaching evidence through the testimony of his counsel, notwithstanding the provisions relating to testimony by counsel in the Rules of Professional Conduct"].)
We conclude defendant was obligated to satisfy the "'extraordinary circumstances'" standard. (People v. Linton, supra, 56 Cal.4th at p. 1186.) Defendant argues "there was no other source from which [she] could obtain the impeachment testimony," but her focus is on a collateral issue, i.e., what was said in private conversations between the prosecutor and Deputy Garcia. The important question is whether the prosecutor's testimony was essential to impeach Deputy Garcia's testimony as to what he knew and observed prior to initiating the traffic stop.
The defense could have tested the veracity of Deputy Garcia's testimony by calling other percipient witnesses. On the issue of whether and to what extent Deputy Garcia had been tipped off about the Nissan Altima, defendant could have subpoenaed the probation officer and narcotics investigator (both of whom were identified by name during the hearing). Those individuals had allegedly spoken with Deputy Cooper as well, so Deputy Cooper was presumably capable of verifying or discrediting Deputy Garcia's story. Deputy Cooper could have also provided an eyewitness account of defendant's driving. He testified for the People on the Harvey/Madden issue, and we note defense counsel attempted to question him about the basis for the initial stop. The inquiry was outside the scope of direct, so an objection to the questioning was sustained, but counsel could have easily called Deputy Cooper as a defense witness. In light of these circumstances, error has not been shown.
II. Prosecutorial Error
A. Background
At trial, Deputies Cooper and Garcia testified to statements made by defendant during the stop and following her arrest. Prior to the VIN check, defendant allegedly told Deputy Garcia she had recently purchased the car and had already been "stopped by the Bakersfield Police Department for displaying a false tag on the vehicle." Defendant said "she was working on getting the vehicle registered and would take care of the sticker as soon as she did so."
Later, while handcuffed and seated in a patrol car, defendant allegedly waived her right to remain silent. Deputy Cooper testified to questioning her about the Nissan Altima. Defendant claimed to have acquired it from a man named "Blake" the previous afternoon. She admitted knowing the car was stolen and said her intention had been to "return it to the registered owner," whom she identified as Leeroy's fiancée. Deputy Cooper asked about the handwritten bill of sale, and defendant "told [him] that it wasn't real, that she just made it up."
The jury instructions included the optional language of CALCRIM No. 358: "Consider with caution any statement made by a defendant tending to show her guilt unless the statement was written or otherwise recorded." During closing argument, defense counsel recited the instruction and explained its application to defendant's alleged statements. The prosecutor objected, alleging a misstatement of the law. The objection was apparently overruled.
Due to typographical errors, the trial court's exact response is unknown. The reporters transcript reads: "It's argument and if you feel he misstated it, then, you misstated it. You follow my instruction. Okay. Go ahead." --------
During the People's rebuttal, the prosecutor argued the cautionary instruction in CALCRIM No. 358 did not apply because Deputy Cooper "wrote down what the defendant said." In essence, any reference to defendant's statements in the deputies' reports supposedly meant those statements had been "written or otherwise recorded." Defense counsel objected, and the trial court said, "Overruled. And at this point this is argument. If you don't find that to be the evidence, that's fine. It's a correct statement of the law what he said up to this point
Outside the presence of jurors, defense counsel requested a curative admonition because the prosecutor had misstated the law. The trial court disagreed with counsel's recollection of what was said, but the prosecutor took responsibility for his statements. Nevertheless, the trial court refused to provide any clarifying instructions.
B. Law and Analysis
The People appropriately concede error. Whether characterized as prosecutorial error, judicial error, or both, the mistake resulted in a misdirection of the jury. To the extent jurors were misled to believe the advisement in CALCRIM No. 358 was technically unwarranted, what occurred was tantamount to omitting the instruction. "Failure to give the cautionary instruction is not a violation of federal due process warranting the 'more stringent standard' of review for federal constitutional error." (People v. Diaz (2015) 60 Cal.4th 1176, 1195; accord, People v. Johnson (2018) 6 Cal.5th 541, 588 [quoting ibid.]; People v. Dickey (2005) 35 Cal.4th 884, 905 ["Mere instructional error under state law regarding how the jury should consider evidence does not violate the United States Constitution"].)
"The cautionary instruction regarding a defendant's statements stands in contrast to instructions that convey a legal principle with which jurors would be unfamiliar in the absence of instruction from the court." (People v. Diaz, supra, 60 Cal.4th at p. 1191.) It "may be helpful in some circumstances but is not 'vital to the jury's ability to analyze the evidence.'" (Id. at p. 1192.) Therefore, under the test for prejudice, "[w]e examine the record to see whether there was a conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately." (People v. Miranda (2015) 236 Cal.App.4th 978, 991, citing People v. Dickey, supra, 35 Cal.4th at p. 905; accord, Diaz, supra, at p. 1195.) "'Where there was no such conflict in the evidence, but simply a denial by the defendant that he made the statements attributed to him, [the California Supreme Court has] found failure to give the cautionary instruction harmless.'" (People v. Salazar (2016) 63 Cal.4th 214, 251, quoting Dickey, supra, at p. 906; accord, People v. Smith (2018) 4 Cal.5th 1134, 1171.) "Furthermore, when the general instructions on witness credibility were given, and witnesses were extensively impeached so as to raise the credibility issues to which those instructions were pertinent," appellate courts have concluded jurors would have understood the need for "'caution.'" (Salazar, supra, at p. 251; see People v. Andrade (2015) 238 Cal.App.4th 1274, 1300 [failure to give CALCRIM No. 358 deemed harmless where jurors received CALCRIM No. 226, "which sets forth the factors in assessing the credibility and believability of witnesses"].)
Defendant identifies no conflicts in the evidence of her statements. Her trial attorney impliedly denied some statements on her behalf, i.e., those tending to incriminate her, but counsel argued the statement about her intention to return the car to its owner was exculpatory. In terms of impeachment, the deputies were cross-examined on their failure to carry personal recording devices and decision not to conduct a formal, recorded custodial interview at the police station. Deputy Cooper claimed to have taken handwritten notes as defendant was speaking, but he admitted to subsequently destroying them. Cross-examination also showed certain facts to which the deputies had testified to were not mentioned in their written reports or in the preliminary hearing testimony. In closing argument, defense counsel criticized the deputies' failure to record defendant's statements. For example: "[I]f any of us want to record somebody we can simply take our phone out and press a button and get that, so I guess all of us have better investigative abilities than an officer who has somebody there who is going to interview [the suspect] who can't record it."
The jurors received the standard instruction on witness testimony (CALCRIM No. 226), which told them to rely on "common sense and experience" to evaluate credibility and believability. The jury also received CALCRIM No. 359, which said defendant could not be convicted based on her out-of-court statements alone. Under these circumstances, the error was harmless. (People v. Salazar, supra, 63 Cal.4th at p. 251; People v. Diaz, supra, 60 Cal.4th at p. 1196.)
Furthermore, "an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177.) Rather than adopting a concrete defense theory, trial counsel argued the evidence left open the possibility of three alternate scenarios. None of the theories allowed for a reasonable doubt as to defendant's guilt.
In scenario No. 1, Leeroy's insurance carrier had somehow recovered the Nissan Altima after paying his claim and then sold the car to the people identified in the handwritten bill of sale. Against incalculable odds, those buyers quickly turned around and sold the vehicle to defendant. This would mean the car had lost its stolen character by the time defendant came into possession of it. To accept such a theory, one would have to also assume the police had no involvement in the recovery of the vehicle, were never made aware of its recovery, or for some other reason had failed to update the vehicle's status in their computer system.
In scenario No. 2, defendant was a bona fide purchaser. She did not know the Altima was stolen because, in its stripped and repainted condition, it no longer resembled the one Leeroy had driven when they lived together. Despite having her own automobile just a few weeks earlier, she was suddenly in the market for a different or additional vehicle. By sheer coincidence, the one she purchased was Leeroy's stolen car. However, Deputy Cooper testified defendant was using a Nissan ignition key and not a "shaved key" (referring to a burglary tool). Defendant was alleged to have admitted this was "the key for the vehicle," but independent evidence of the original equipment manufacturer's key strongly implied a connection between defendant and whoever had stolen Leeroy's fiancée's purse.
In scenario No. 3, defendant knew the car was stolen but intended to return it to the "registered owner." This theory required disbelief of most of the testimony about defendant's statements and acceptance of the bill of sale as genuine. However, that would mean defendant spent $2,500 to recover Leeroy's vehicle rather than simply contacting the police once she had located it. It was also inconsistent with testimony by Leeroy and his fiancée, which indicated they were no longer on friendly terms with defendant at the time.
Pursuant to the foregoing analysis, it is not reasonably probable the verdict would have been different but for the error involving CALCRIM No. 358. Therefore, the error is harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III. Proposition 47
Section 496d requires proof of the defendant's possession of a stolen vehicle with knowledge of its stolen character. (Id., subd. (a).) The offense is punishable as either a misdemeanor or a felony. (Ibid.) Defendant was sentenced as a felon pursuant to section 666.5, which is "an alternate punishment scheme that prescribes an elevated sentencing triad for recidivist car thieves who have a prior felony conviction for car theft or related conduct." (People v. Lee (2017) 16 Cal.App.5th 861, 869.)
Subject to exceptions not relevant here, section 490.2 classifies as a misdemeanor "obtaining any property by theft where the value of the ... property taken does not exceed nine hundred fifty dollars ...." (Id., subd. (a).) Section 490.2 was enacted by Proposition 47. The same legislation amended subdivision (a) of section 496 (§ 496(a)), which broadly proscribes the act of buying or receiving stolen property. A violation of section 496(a) is a misdemeanor unless the value of the property is greater than $950.
Section 496d differs from section 496(a) in its narrow focus on the type of property purchased or received (motor vehicles, trailers, special construction equipment, and vessels). (§ 496d, subd. (a).) Whereas the $950 value element is stated in section 496(a), no such language appears in section 496d. Proposition 47 made no express changes to section 496d, but defendant argues the statute was impliedly amended by the enactment of section 490.2 and revisions to section 496(a). In short, defendant claims her felony conviction under section 496d required proof of the value of the stolen car. Citing the lack of evidence regarding the value of Leeroy's Nissan Altima, defendant argues her conviction must be reduced to a misdemeanor.
A split of authority on this issue was recently resolved in People v. Orozco (2020) 9 Cal.5th 111. The California Supreme Court held "that Proposition 47's amendment to section 496(a) did not affect convictions for receiving stolen property under section 496d." (Id. at p. 123.) Therefore, defendant's claim fails as a matter of law.
IV. Senate Bill 136
On October 8, 2019, Senate Bill 136 was signed into law. (Stats. 2019, ch. 590, § 1.) As of January 1, 2020, the one-year enhancement provided for in section 667.5, subdivision (b) is inapplicable to all prior prison terms except those served for a sexually violent offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b). None of defendant's prior prison terms were based on a sexually violent offense.
The parties contend, and we agree, Senate Bill 136 applies retroactively to cases not yet final on its effective date. (People v. Jennings (2019) 42 Cal.App.5th 664, 681-682; People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.) Therefore, we will remand the case to the trial court with instructions to (1) strike and dismiss the prior prison term enhancements and (2) resentence defendant accordingly.
In a related claim, defendant argues any time she has already served in excess of her four-year sentence for violating section 496d must be credited against a sentence imposed in Kern Superior Court case No. BF165082A, wherein she received a sentence of three years eight months that was ordered to run consecutive to her punishment in this case. She asks us to confirm her legal analysis is correct and instruct the trial court to "award the credits for any time served to the entire sentence for both cases and to inform the Kern County Sheriff to apply [her] additional credits in this manner." We view this claim as premature, as it assumes the trial court will commit some type of error in the future. Defendant may raise the issue with the trial court on remand, but we decline to provide an advisory opinion on a potential controversy that may never arise. (See People v. Ybarra (1988) 206 Cal.App.3d 546, 550 ["it is well settled that matters which are not ripe for adjudication should ordinarily be left to a future forum"].) Defendant's request for judicial notice of records in Kern Superior Court case No. BF165082A is thus denied as moot.
DISPOSITION
As to the section 496d conviction and section 666.5 enhancement, the judgment is affirmed. In light of Senate Bill 136, the matter is remanded to the trial court for further proceedings. On remand, the trial court shall strike and dismiss the enhancements previously imposed under former subdivision (b) of section 667.5, and defendant shall be resentenced accordingly. Upon resentencing, the trial court shall prepare an amended abstract of judgment and forward copies to the appropriate agencies.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
LEVY, J.