Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF126370A. Michael G. Bush, Judge, for ruling on motion to suppress and Michael B. Lewis, Judge, for sentencing.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
After his motion to suppress was denied defendant, Bradley Vel Walker, pleaded nolo contendere to transportation of cocaine and possession of cocaine for sale. He admitted two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a), and admitted that he served two prior separate prison terms within the meaning of Penal Code section 667.5, subdivision (b). He appeals claiming the trial court erred when it denied his motion to suppress. We disagree and affirm the judgment. In addition, we find defendant is not entitled to additional conduct credits pursuant to Penal Code section 4019.
All future code references are to the Penal Code unless otherwise noted.
FACTS
On the evening of January 17, 2009, Bakersfield police officer, Eric South, was on patrol in an area of town frequented by criminal street gang activity. A gang killing had occurred in the area two days prior and the police department had received an anonymous tip that another shooting was expected to occur that night, in that area, at a candlelight vigil planned for the homicide victim.
A dispatch was issued that someone heard shots fired in that area. South headed towards the area where it was reported that the shots had been heard. Approximately a quarter mile from the reported shooting, he saw a car coming from that area driving at a high rate of speed. He followed the car and it made a right-hand turn at the first available opportunity, heading down an alley that dead-ends into a church parking lot. It was Officer South’s opinion that such a maneuver was to avoid contact with law enforcement.
South stopped the car because it was fleeing an area where shots had been fired, it was speeding, and the driving behavior was suspicious. South contacted the driver of the car, Charles Mitchell. Defendant was the passenger in the car. Mitchell was on parole and did not have a driver’s license.
South told Mitchell that he stopped him because shots had been fired in the area. Mitchell responded, “I wish I did have a gun.” Mitchell said he was coming from his residence, which South recognized as West Side Crips territory. He asked Mitchell if he was a West Side Crip and he responded that he used to be a Blood.
South asked Mitchell where he was going and defendant responded that they were going to the Rosedale area to buy a car. South knew they were not going in the direction of Rosedale when he stopped them. He asked them why they were going northbound in an alley if they were headed towards Rosedale. Neither Mitchell nor defendant responded.
South decided he was going to search the vehicle because of Mitchell’s parole status. South was also concerned, based on the shots-fired dispatch, that there might be a firearm in the car. For officer safety purposes, he waited for another officer to arrive before he began his search. He could not put one of the individuals in the back of his patrol car because he drove a canine unit and the canine occupied his back-seat space.
Within five to 10 minutes, Officer Jason Williamson arrived. After Williamson’s arrival, South removed Mitchell from the car and searched him. Mitchell was wearing a red belt and the buckle had the letter B on the front of it. South believed the belt represented the Blood criminal street gang.
Williamson told defendant that he wanted to make sure defendant did not have any weapons and asked him if he would mind stepping out of the car. Defendant stepped out of the car and Williamson put him in a twist-lock-control hold so he could do a search. Based on the totality of the circumstances, Williamson conducted a patsearch of defendant for weapons. He located a large bulge in one of defendant’s pockets. Williamson thought the bulge was money but could not tell exactly what it was and he could not determine if there was something behind it. Williamson asked defendant what the bulge was and defendant said it was money. Williamson asked defendant if he could remove it and defendant told him he could. Williamson pulled the bulge out and it was stacks of money banded together. The stack was two and a half to three inches thick.
Williamson handed the money to South. South said the stacks of money contained $20 bills, $10 bills, $5 bills, and $1 bills. The denomination of the money plus the way it was banded together was consistent with street-level narcotics sales. South asked defendant if he worked. He said no. South asked defendant how he got the money if he did not work. Defendant did not reply.
Williamson felt another bulge and asked defendant what it was. Defendant said it was money. Williamson asked if he could pull it out and defendant gave him permission to do so. Williamson pulled out a wad of $1 bills. The defendant began to tense up and, as the search progressed, he became more nervous. Williamson asked defendant to lean up against his patrol car. Williamson observed defendant’s tattoos which were consistent with gang-related tattoos. Williamson believed it was possible defendant was a gang member. Based on the totality of the circumstances, Williamson decided to handcuff defendant while South searched the car.
South’s search of the car took about five to 10 minutes. The total time from the stop of the car to the end of the search of the car was approximately 20 minutes. South did not find anything illegal during his search of the car.
Given the circumstances Williamson believed there were narcotics present. He asked defendant if he had any dope in his pants or any “rock in your ass.” Defendant said, “No. Go ahead and check.”
Williamson told defendant to turn away from him and spread his legs apart. Williamson swept the palm of his hand up the crack of defendant’s buttocks. Williamson felt a knot. Williamson had felt such a knot many times before and on each occasion the knot was attached to a bag of narcotics. Defendant tried to spin away and started screaming at Williamson. Because Williamson had a hold of the knot when defendant started to spin, the bag dislodged from his buttocks. Williamson grabbed the waistband of defendant’s pants and shook his pants. The bag of narcotics fell out of defendant’s pant leg.
DISCUSSION
I. Suppression Motion
Defendant contends the trial court erred when it denied his motion to suppress. He first claims the weapons patsearch was unreasonable because the totality of the circumstances did not support a reasonable, individualized suspicion that defendant was armed and dangerous. He then claims the scope of the patsearch exceeded that allowed in patsearches and, to the extent that defendant consented to the search, the removal of money from his person was beyond the scope of his consent. He further argues that the “full” search was unreasonable because it was a de facto arrest without probable cause and, as such, his consent for the search is invalid as a product of an illegal detention or arrest.
“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.” (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134.)
Defendant contends there were no specific and articulable facts supporting a conclusion that defendant was armed and dangerous, thus, the officer did not have a permissible basis to conduct a patsearch of defendant.
A patsearch for weapons is permissible if the officer has “reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.” (Terry v. Ohio (1968) 392 U.S. 1, 27.) “‘[W]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, ’ the officer may conduct a patdown search ‘to determine whether the person is in fact carrying a weapon.’ [Citation.] ‘The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence....’” (Minnesota v. Dickerson (1993) 508 U.S. 366, 373.)
Defendant claims the case of People v. Medina (2003) 110 Cal.App.4th 171 is similar to what occurred here. In Medina the defendant’s car was stopped at approximately midnight in a high crime area because a taillight was broken. There was not anything specific about Medina that led the officer to believe he was armed, but the officer decided to search him because he was in a “‘high-gang location.’” (Id. at p. 175.) Cocaine was taken from his pocket and also found in his car. His motion to suppress was denied in the trial court and he appealed. (Id. at p. 174.) The appellate court held the trial court erred in denying the motion to suppress because the facts given to support the search were not sufficient. “[W]hile ‘[a]n area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment, ’ and ‘[t]he time of night is another pertinent factor in assessing the validity of a detention, ’ ‘mere presence in a high crime area is not, standing alone, “sufficient to justify interference with an otherwise innocent-appearing citizen....”’” (Id. at p. 177.)
The Medina case is factually distinguishable from what occurred here. Defendant and Mitchell were in a car seen speeding from an area where a report had just been received of shots fired. The officers were aware of a report that a retaliatory-gang shooting was expected to occur in the area that night because of a homicide committed two days earlier. When South pulled behind the car, it made an evasive maneuver turning down an alley that dead-ended into a church parking lot. The explanation by defendant of where they were going did not match their direction of travel. The driver of the car, Mitchell, was on parole and could not produce a driver’s license. South observed that Mitchell was wearing a belt that could be associated with a gang, and Mitchell admitted having former ties with a gang. Gang-related tattoos were seen on defendant.
In light of the above circumstances, it was reasonable for Williamson to believe that defendant could be armed and, thus, the patsearch was authorized.
Because we find the patsearch was authorized, we need not determine if defendant consented to the initial search.
Next, defendant argues that even if the patsearch was reasonable, the seizure of money from him was unlawful because the officer knew the bulges he felt were not weapons and were, instead, money. In removing the money defendant claims the officer exceeded the “plain feel” parameters of the patsearch.
“A Terry search is limited to ‘an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.’ [Citation.] As a general rule, an officer may not search a suspect’s pockets during a patdown unless he or she encounters an object there that feels like a weapon.” (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1237.)
When the officer found the bulge in defendant’s pocket and defendant identified it as money, the officer asked if he could remove the money from defendant’s pocket. Defendant gave the officer permission to remove the money. Thus, the officer removed the money only after obtaining defendant’s consent to do so. “The voluntariness of consent is a question of fact to be determined from the totality of circumstances. [Citations.] If the validity of a consent is challenged, the prosecution must prove it was freely and voluntarily given—i.e., ‘that it was [not] coerced by threats or force, or granted only in submission to a claim of lawful authority.’” (People v. Boyer (2006) 38 Cal.4th 412, 445-446.)
Having found the patsearch was justified, the prosecution provided evidence that defendant freely consented to the removal of the money from his pocket. Defendant’s consent thus alleviated any concern that the officer removed an object that was not a weapon from defendant’s pocket.
As his final challenge to the denial of the suppression motion, defendant asserts the officer exceeded the bounds of the detention and transformed the encounter into a de facto arrest when he continued questioning and searching defendant after nothing was found in the car or during the patsearch.
“‘The distinction between a detention and an arrest “may in some instances create difficult line-drawing problems.”’ [Citation.] A police stop that began as an investigative detention may ‘become so overly intrusive that it can no longer be characterized as a minimal intrusion designed to confirm quickly or dispel the suspicions which justified the initial stop. [Citation.] When the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause. [Citation.] However, there is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.’” (In re Antonio B. (2008) 166 Cal.App.4th 435, 440.)
Defendant contends the case of People v. Valenzuela (1994) 28 Cal.App.4th 817 is illustrative of how his case should be decided. In Valenzuela the defendant stopped at a required agricultural inspection. A border patrol agent was also present at the inspection and after noticing that the defendant appeared to be Hispanic asked him to park at the side of the road. The agent’s request was based on the facts that Valenzuela spoke little or no English, did not make eye contact with the agent, and was kneading his steering wheel, appearing anxious to leave. The agent questioned Valenzuela regarding his citizenship and Valenzuela handed the agent his resident-alien form (green card). Valenzuela’s hands were shaking as the agent continued to ask him questions about where he had been and where he was going. The agent thought it was unusual that there was no luggage visible in the car in light of Valenzuela’s statement that he was returning from a three-day trip. The agent believed that Valenzuela might be transporting contraband in the trunk of his car and asked for permission to look in the trunk. Valenzuela consented. After a dog alerted to the trunk area, drugs and money were found in the trunk. (Id. at pp. 821-822.)
After his motion to suppress was denied, Valenzuela appealed. The appellate court reversed the trial court’s ruling. First, the court found that Valenzuela was detained when he was ordered to park at the side of the road in the presence of multiple uniformed officers. In addition, the court found that the agent had to have possessed a reasonable suspicion before it could stop and question any person passing the checkpoint. The factors relied on by the agent in finding Valenzuela’s activities to be suspicious did not support the stop. The agent did not have any intelligence information that would suggest Valenzuela was an illegal alien; his nervousness did not show a desire to avoid the agent; the fact that the car had a trunk was not cause for suspicion because many cars have trunks capable of transporting illegal aliens; and the fact that Valenzuela was more fluent in Spanish than in English describes “millions of people in the same geographic region who are citizens or lawful residents of the United States.” (People v. Valenzuela, supra, 28 Cal.App.4th at p. 830.) The appellate court concluded that Valenzuela was unlawfully detained. (Id. at pp. 823-830.)
The appellate court also went on to find Valenzuela’s consent to the search involuntary. After ordering Valenzuela to the side of the road, the agent took away his green card, even though it appeared to be valid. The agent did not return the green card until after obtaining Valenzuela’s consent to search. This was inherently coercive. (People v. Valenzuela, supra, at pp. 832-834.)
The appellate court concluded, “Agent Hudson could articulate no specific facts to justify selecting defendant’s vehicle for further examination. The criteria upon which he relied did not differentiate defendant from any number of innocent persons. There was nothing upon which to base a reasonable suspicion defendant was either in the country illegally or that he was otherwise engaged in illegal activity. Likewise, Agent Hudson lacked probable cause to search. Defendant’s purported consent to the search was the product of an illegal detention and inherently coercive circumstances, in which he consented only while Agent Hudson unreasonably withheld his green card.” (People v. Valenzuela, supra, 28 Cal.App.4th at p. 834.)
We fail to see the parallels drawn by defendant between his case and the Valenzuela case. In the Valenzuela case the detention was found to be illegal and from that the court found the consent to be invalid. First, we will not revisit the question of whether defendant was lawfully detained, having already determined that he was. Nor will we revisit whether the officer could remove the money from defendant’s pockets, as we have already determined that he was given consent to do so. The only issue remaining here is whether the detention was unduly prolonged or overly intrusive as to constitute a de facto arrest when the officer asked defendant if he had any drugs and defendant then gave his consent to look for them.
When South completed the search of the car, Williamson asked defendant if he had any drugs. While the officers had not found any illegal materials up to this point, the detention was not yet complete. Mitchell, the driver, was on parole and did not produce a driver’s license. Thus, the officers had not completed their tasks related to the traffic stop because they had not determined what to do with the car. Williamson merely asked a question of defendant, followed by defendant’s consent to search him for drugs. The asking of the simple question, while details of the traffic stop had not been completed, was not overly intrusive and did not unduly prolong the stop. The officers proceeded in their investigation in a diligent and reasonable manner, up to the point where defendant gave consent to search for drugs. Having given his consent freely, the discovery of the drugs was authorized.
The suppression motion was properly denied.
II. Section 4019 Credits
Under section 2900.5, a person sentenced to state prison is entitled to credit against his jail or prison term for all days spent in custody prior to sentencing. (§ 2900.5, subds. (a), (c).) Under section 4019 a defendant may also earn conduct credits, which are additional credits earned for performance of assigned labor and compliance with rules and regulations. (§ 4019, subds. (b) & (c); People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Defendant was sentenced on December 10, 2009, and was awarded presentence credits of 28 days actual time and 14 days conduct time for a total of 42 days. His sentence was calculated under section 4019 that was in effect at the time his sentence was imposed.
Effective January 25, 2010, section 4019 was amended to award a larger amount of presentence custody credits to eligible defendants. Pursuant to our standing order defendant is deemed to have raised this issue and was not required to file a brief addressing it. The basis for a section 4019 argument is that because the conviction is not yet final, conduct credits should be calculated under the more generous version of section 4019 (effective January 25, 2010) and not the less generous version in effect at the time he committed his crime. It is claimed that the more generous credits given under section 4019 must apply retroactively to a case because the amended statute would lessen punishment and the case is not yet final because it remains pending on appeal. In addition, it is argued that the failure to apply the statute retroactively is a denial of equal protection under the California and federal Constitutions. We disagree and conclude the amendment applies prospectively only.
Section 4019 was amended by urgency legislation, operative on September 28, 2010. (Stats. 2010, ch. 426, § 2.) These amendments were expressly made to apply only to cases involving crimes occurring on or after the effective date of September 28, 2010. Thus, the new version of section 4019 does not affect this case and does not change our analysis in this matter. Unless otherwise noted, all subsequent references to section 4019 or its amendments refer to the version of section 4019 effective January 25, 2010, and not the newest version of section 4019.
This issue is currently before the California Supreme Court in several cases including our opinion in People v. Rodriguez, S181808, and the lead case of People v. Brown, S181963.
Under section 3, it is presumed that a statute does not operate retroactively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application].’” (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by “‘“clear and compelling implication”’” from any other factor(s), that it intended the amendment to operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only.
We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the January 2010 amendment to section 4019.
We further conclude that prospective-only application of this amendment does not violate defendant’s equal protection rights. People v. Sage (1980) 26 Cal.3d 498 does not aid the equal protection argument. Sage is inapposite because it involved a prior version of section 4019 that allowed presentence conduct credits to misdemeanants, but not felons. (Sage, supra, 26 Cal.3d at p. 508.) The California Supreme Court found that there was neither “a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons.” (Ibid.) The purported equal protection violation at issue here is temporal, rather than based on defendant’s status as a misdemeanant or felon.
One of section 4019’s principal purposes, both as formerly written and in the amendment effective January 25, 2010, is to motivate good conduct. Defendant and those like him who were sentenced prior to the effective date of the amendment cannot be further enticed to behave themselves during their presentence custody. The fact that defendant’s conduct cannot be influenced retroactively provides a rational basis for the Legislature’s implicit intent that the amendment only apply prospectively.
Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: KANE, Acting P.J., POOCHIGIAN, J.