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P. v. Barnes

Court of Appeals of California, Second Appellate District, Division One.
Nov 19, 2003
No. B165440 (Cal. Ct. App. Nov. 19, 2003)

Opinion

B165440.

11-19-2003

THE PEOPLE, Plaintiff and Respondent, v. ROBERT W. BARNES, Defendant and Appellant.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Paul M. Roadarmel, Jr., Deputy Attorney General, for Plaintiff and Respondent.


Robert Barnes was convicted of one count of possessing cocaine base for sale, with true findings on allegations that he had suffered a prior federal drug conviction and served a prior prison term. Barnes was sentenced to state prison for an aggregate term of seven years. He appeals, contending (I) his motion to suppress evidence should have been granted, and (II) his prior federal drug conviction is not a qualifying prior under section 11370.2 of the Health and Safety Code. We reject his contentions and affirm the judgment.

Undesignated section references are to the Health and Safety Code.

FACTS

These facts are from the transcript of the preliminary hearing.

As Long Beach Police Officer Eric Hooker watched from his marked patrol car, Barnes stood conversing with another man near the intersection of Pacific Avenue and Fourth Street, a known drug trafficking area. The officer recognized the other man as someone he had arrested a couple of days earlier on a drug possession charge. After watching the two men for a couple of minutes (it was about 4:30 on a summer afternoon), Officer Hooker drove into a parking lot. When Barnes saw the officer, he walked into the nearby Cinco de Mayo Restaurant; the other man walked away.

Officer Hooker parked his car, walked into the restaurant, saw Barnes sitting on a barstool, and walked over to him. The officer asked if they could talk. Barnes agreed, and got up and walked out to the patrol car with Officer Hooker. Officer Hooker noticed that Barnes was sweating and nervous, and asked whether he was on probation or parole. Barnes said he was on federal parole for possession of a controlled substance with intent to distribute. When asked, Barnes gave the officer his name, and Barnes stood waiting by the car while the officer ran a warrant check. Officer Hooker noticed that Barnes "wasnt standing in the same spot. He was . . . walking back and forth." Officer Barnes called for back up, and two other patrol cars arrived within about two minutes.

Officer Hooker (in a normal tone and without displaying a weapon) asked Barnes if he could search for narcotics. Barnes consented. When the officer felt the outside of Barness pants, he noticed several small, rock-like objects. Barnes turned to the left as if to run, and the officer then grabbed his wrist and handcuffed him, pulled Barness pants forward, and found a clear plastic baggie with 26 individually wrapped rock-like substances. A pager and $45 were found in a further search.

Barnes was arrested and charged as noted at the outset. His motion to suppress the drugs was denied, and a jury convicted him as charged, after which the trial court found the prior allegations were true.

DISCUSSION

I.

Barnes moved to suppress the drugs on the ground that he had a reasonable expectation of privacy at the time of the search, and he submitted the matter to the trial court based on "the four corners of the preliminary hearing transcript" which includes the magistrates consideration and denial of the same motion to suppress. The trial court denied the motion, and Barnes now claims the trial court was wrong. We disagree.

A.

In addition to the facts summarized above, Barnes testified to the effect that he was in the restaurant for about 20 minutes before the officer entered, tapped him on the shoulder, and said he wanted to talk to him. Barnes conceded he knew he "had the right to not go with the officer," and testified that he went with him anyway. The preliminary hearing transcript also includes a "supervised release" form signed by Barnes when he was released from federal prison, and that form includes a consent to search at any time at the direction of a United States probation officer.

Both the magistrate and the trial court found that based on the officers knowledge of the area and of the person talking to Barnes, the officers observations, and the fact that Barnes was on supervised release on parole, the search was neither arbitrary nor capricious. As had the magistrate, the trial court denied the suppression motion.

B.

On this appeal, Barnes argues at great length about his expectation of privacy, and he contends his assent to the search condition does not affect the reasonableness of that expectation. In a related argument, he contends he was impermissibly detained. We reject both arguments.

First, the California Supreme Court held earlier this year that "even in the absence of particularized suspicion, a search conducted under the auspices of a properly imposed parole search condition does not intrude on any expectation of privacy "society is prepared to recognize as legitimate."" (People v. Sanders (2003) 31 Cal.4th 318, 332.) The fact that the Ninth Circuit held otherwise in U.S. v. Crawford (9th Cir. 2003) 323 F.3d 700, is interesting but legally irrelevant at this stage of Barness appeal — for the simple reason that we are bound to follow the United States Supreme Court and the California Supreme Court, not the federal circuit courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Second, as the magistrate found when it accepted the officers testimony, the officer knew the conversation he had observed at the intersection was occurring in an area known for its drug trafficking and involved at least one known drug dealer; the officer also saw Barnes walk away when the patrol car approached, with the other man going off in the opposite direction, and the officer entered the restaurant immediately after that, not 20 minutes later; in the restaurant, Barnes — knowing he had the right to refuse — agreed to talk to the officer and voluntarily accompanied him out to the patrol car, but then started to sweat and appeared nervous; and when the officer asked about his parole status, Barnes admitted he was on parole. It was only after the officer conducted a limited patdown search and Barnes turned as though to flee that the officer restrained him.

In short, this encounter was both consensual (Florida v. Bostick (1991) 501 U.S. 429, 434), and based on specific articulable facts. (In re Manuel G. (1997) 16 Cal.4th 805, 821; People v. Fisher (1995) 38 Cal.App.4th 338, 344 [the possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct, particularly since the principal function of police investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal]; People v. Coulombe (2000) 86 Cal.App.4th 52, 56 [temporary detention and patdown search proper when officer believes "criminal activity is afoot" and that the defendant is connected with it]; Illinois v. Wardlow (2000) 528 U.S. 119, 124-125 [officers are not required to ignore the characteristics of a location, nor are they required to ignore the fact that a suspect appears nervous and evasive].)

The motion to suppress was properly denied.

II.

Barnes was sentenced to the mid-term of four years for his current conviction, plus a consecutive term of three years for the section 11370.2, subdivision (a), enhancement. On this appeal, he contends his prior federal drug conviction does not support the enhancement. We disagree.

A.

Evidence presented at trial of the prior shows that in 1995 Barnes was convicted of three counts in the United States District Court for the Eastern District of Washington: (1) conspiracy to distribute cocaine and possession with the intent to distribute over 50 grams of cocaine base, in violation of 21 U.S.C. § 846; (2) possession with the intent to distribute over 50 grams of cocaine base, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1); and (3) distribution of and possession with intent to distribute over 50 grams of cocaine base within 1,000 feet of a school, in violation of 21 U.S.C. § 860.

B.

As relevant, section 11370.2, subdivision (a), provides that "[a]ny person convicted of a violation of, or of a conspiracy to violate, Section . . . 11351.5 . . . shall receive, in addition to any other punishment authorized by law, . . . a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment." Subdivision (f) of the same statute provides that "[p]rior convictions from another jurisdiction qualify for use under this section pursuant to section 668." (§ 11370.2, subd. (f).)

Penal Code section 668 provides that "[e]very person who has been convicted in any other state . . . or jurisdiction of an offense for which, if committed within this state, that person could have been punished under the laws of this state by imprisonment in the state prison, is punishable for any subsequent crime committed within this state in the manner prescribed by law and to the same extent as if that prior conviction had taken place in a court of this state. The application of this section includes, but is not limited to, all statutes that provide for an enhancement or a term of imprisonment based on a prior conviction or a prior prison term."

The Attorney General concedes that the only enumerated California offense sufficiently similar to any of the counts comprising Barness prior conviction is section 11351.5, which the Attorney General contends is sufficiently similar to Barness federal conviction of possession for sale of cocaine base. Barnes contends none of the federal counts are sufficiently similar, and attempts to distinguish between the word "sale" in the California statute and the word "distribute" in the federal statute. He says he could have been guilty under the federal statute (but not the California statute) had he "simply . . . delivered the narcotics without making a sale or intending to do so." We agree with the Attorney General.

21 U.S.C. § 841(a)(1), the relevant federal statute, provides: "Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. . . ." Section 11351.5, the relevant California statute, punishes "every person who possesses for sale . . . cocaine base . . . ."

The elements of the federal and state offenses are sufficiently similar. Under the federal statute, the defendant must knowingly possess the controlled substance with the intent to deliver it to another person. (U.S. v. Vargas-Castillo (9th Cir. 2003) 329 F.3d 715, 719.) Under the California statute, the defendant may be convicted of possession with intent to sell based on either an intent to personally sell the controlled substance, or knowledge that someone else down the distribution chain will sell it. (People v. Parra (1999) 70 Cal.App.4th 222, 224-226.) Accordingly, it matters not that "distribute" as used in the federal statute might not require a sale or intent to sell — because there is no such requirement in section 11351.5. (See also U.S. v. Sandoval-Venegas (9th Cir. 2002) 292 F.3d 1101, 1107 ["Californias possession for sale closely mirrors the federal statute that criminalizes possession with intent to distribute"].)

The enhancement is proper.

DISPOSITION

The judgment is affirmed.

We concur: SPENCER, P.J., ORTEGA, J.


Summaries of

P. v. Barnes

Court of Appeals of California, Second Appellate District, Division One.
Nov 19, 2003
No. B165440 (Cal. Ct. App. Nov. 19, 2003)
Case details for

P. v. Barnes

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT W. BARNES, Defendant and…

Court:Court of Appeals of California, Second Appellate District, Division One.

Date published: Nov 19, 2003

Citations

No. B165440 (Cal. Ct. App. Nov. 19, 2003)